vol-98364

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.,

Plaintiffs

v.

JAMES D. CALDWELL, et al.,

Defendants

CIVIL ACTION

NO. 13-5090

SECTION F(5)

JUDGE MARTIN L.C. FELDMAN

MAGISTRATE MICHAEL NORTH

REF: ALL CASES

BRIEF FOR AMICUS CURIAE PROFESSOR HELEN M. ALVARÉ

COMES NOW, Amicus Curiae, Helen M. Alvaré, via undersigned counsel, who seeks

leave of court to file this brief on behalf of the Defendants.

INTEREST OF AMICUS CURIAE

Amicus is a law professor at George Mason University Law School who has written

extensively about family law in the United States, with a special focus on issues involving

legislative and judicial treatment of marriage and parenting. She is committed to the public

interest and in particular to the marriage and parenting circumstances of the least privileged

Americans. Based upon her research into the history of constitutional marriage law and the

evolving meaning of “marriage” among less-privileged Americans, she believes that states have

a substantial interest in supporting and encouraging marriage among opposite-sex couples in

order to highlight the procreative aspects of marriage, and in declining to extend similar

recognition to same-sex couples.

ARGUMENT

I. The State Has a Legitimate, Even Compelling Interest in Singling out Opposite-sex

Marriage for Protection, Sufficient to Satisfy the Equal Protection Clause.

Case 2:13-cv-05090-MLCF-ALC Document 89 Filed 05/10/14 of 25

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Plaintiffs in these consolidated cases claim that the Equal Protection and Due Process

Clauses of the Fourteenth Amendment require Louisiana to recognize out-of-state marriages

between persons of the same sex. In addition to the Defendants’ arguments, this amicus adds that

this Court should recognize that states have governmental interests sufficient to justify their

recognizing opposite-sex but not same-sex marriages.

States are constitutionally permitted in legislation to classify people into groups that

“possess[] distinguishing characteristics relevant to interests the State has the authority to

implement.”1 Even more relevant to the question of same-sex marriage, this Court has affirmed

the constitutionality of state classifications where recognizing or benefitting one group

“promotes a legitimate governmental purpose, and the addition of other groups would not.”2 As

described in Section III below, recognizing same-sex marriage as the institution defined by

Plaintiffs—as an adult-centered, emotion-based accomplishment—would not only fail to

promote the government’s substantial interest in opposite-sex marriages, but contradict that

interest in ways likely to harm the segment of society already suffering the most from a retreat

from marriage.

There is no basis for the conclusion—as, for instance, the Ninth Circuit reached in the

Perry case—that defining marriage as a man-woman union “operates with no apparent purpose

but to impose on gays and lesbians . . . a majority’s private disapproval of them and their

relationships.”3 Increasingly, courts have reached this erroneous conclusion based in part on the

1 Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quotation marks omitted).

2 Johnson v. Robison, 415 U.S. 361, 383 (1974).

3 Perry v. Brown, 671 F.3d 1052, 1095 (9th Cir. 2012). The recent district court decisions invalidating

state marriage laws have reached similar conclusions.


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fact that states “ha[ve] never required that individuals entering a marriage be willing or able to

procreate.”4 Yet the lack of a pre-marital “procreation test” does not undermine the legitimacy of

the state’s classifying couples as same-sex or opposite-sex, and offering marriage only to the

latter.

The Supreme Court has repeatedly stated that “[t]he rationality commanded by the Equal

Protection Clause does not require States to match . . . distinctions and the legitimate interests

they serve with razorlike precision”5 or “mathematical nicety.”

6 Rather, classifications that

neither involve fundamental rights nor suspect classifications are “accorded a strong presumption

of validity.”7 For such classifications, the government is not required to “actually articulate at

any time the purpose or rationale supporting its classification,”8 and a court should uphold it

against an Equal Protection challenge “if there is any reasonably conceivable state of facts that

could provide a rational basis for the classification.”9 Moreover, even if intermediate scrutiny

applies (as for gender-based classifications) an exact fit is not required. Intermediate scrutiny

mandates only a “substantial relation” between the classification and the underlying objective,

4 See, e.g., Perry v. Schwarzenegger, No. 3:09-2292-VRW (N.D. Cal.), Findings of Fact and Conclusions

of Law 60, ECF No. 708.

5 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 63-64 (2000) (age discrimination action brought by university

employees).

6 Dandridge v. Williams, 397 U.S. 471, 485 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220

U.S. 61, 78 (1911)).

7 Heller v. Doe, 509 U.S. 312, 319 (1993).

8 Id. at 320 (quoting Nordlinger v. Hahn, 505 U.S 1, 15 (1992)).

9 Id. (quoting Federal Commc’ns Comm’n v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)).


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not a perfect fit.10

“None of our gender-based classification equal protection cases have required

that the statute . . . be capable of achieving its ultimate objective in every instance.”11

States rationally draw a distinction between same-sex and opposite-sex couples that is

rationally and substantially related to Louisiana’s interests in preserving the link between sex,

marriage and procreation. According to the Census Bureau, by the age of 44, over 80% of

married couples have children in the household. This figure does not even include couples whose

children are older or have moved away from home.12

Given the invasions of privacy that would

certainly be involved in ascertaining couples’ procreative willingness and capacities prior to

marriage, the possibility of unintended pregnancies, and couples’ changing intentions, it would

be impossible for states, effectively, to determine the procreative potential of any particular

opposite-sex couple. Drawing a line between same-sex and opposite-sex couples is rationally

related to the state’s interests in maintaining in the public mind the links between sex, marriage

and children.

II. The Supreme Court Has Regularly and Frequently Recognized with Approval the

Importance of States’ Interests in the Procreative Aspects of Opposite-sex Marriage.

Supreme Court decisions from the early nineteenth to the late twentieth century have

repeatedly recognized, with approval, states’ interests in the procreative features of marriage:

10

See Califano v. Webster, 430 U.S. 313, 318 (1977) (per curiam) (upholding statute providing higher

Social Security benefits for women than men because “women on the average received lower retirement

benefits than men;” id. n.5 (emphasis added)).

11 Tuan Anh Nguyen v. Immigration and Naturalization Serv., 533 US. 53, 70 (2001); see Metro Broad.,

Inc. v. Federal Commc’ns Comm’n, 497 U.S. 547, 579, 582–83 (1990), overruled on other grounds,

Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (holding that classification need not be

accurate “in every case” if, “in the aggregate,” it advances the objective).

12 U.S. Census Bureau, Family Households With Own Children Under Age 18 by Type of Family, 2000

and 2010, and by Age of Householder, 2010, The 2012 Statistical Abstract: The National Data Book,

Table 65, http://www.census.gov/compendia/statab/2012/tables/12s0065.pdf (last visited May 9, 2014).


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childbirth and childrearing by the adults who conceived them, and the contribution of that

childrearing to a stable democratic society.

The Supreme Court has written a great deal on the nature of the states’ interests in the

context of evaluating state laws affecting entry into or exit from marriage, or concerning

parental rights and obligations. Typically, these statements recognize that states are vitally

interested in marriage because of the advantages not only to adults but also to children and to

the larger society. Children replenish communities, and communities benefit when children are

reared by their biological parents because parents best assist children to grow to become well-

functioning citizens. The Court does not give special attention to adults’ interests nor accord

them extra weight. Nor are the interests of some children vaulted over the interests of all

children generally.

The material below considers the various manners in which the Supreme Court has, in

the past, discoursed approvingly about marriage and parenting as expressing states’ interwoven

interests in the flourishing of adults, children, and society.

A. States have substantial interest in the birth of children.

While it is difficult to disentangle completely the Supreme Court’s language recognizing

a legitimate state interest in the very birth of children from the state’s interest in the healthy

formation of children within marriage, still it is possible to discern it.

In the case refusing to allow polygamy on the grounds of the Free Exercise Clause,

Reynolds v. United States, this Court explained states’ interests in regulating marriage with the

simple declaration: “Upon [marriage] society may be said to be built.”13

Nearly 100 years later in

13

98 U.S. 145, 165 (1879).


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Loving v. Virginia, striking down a state’s anti-miscegenation law, the Court referred to marriage

as “fundamental to our very existence and survival,” necessarily endorsing the role of marriage

in propagating society through childbearing.14

Even in cases where only marriage or childbearing was at issue, but not both, the Court

has referred to “marriage and childbirth” together in the same phrase, nearly axiomatically. For

instance, in Meyer v. Nebraska, which vindicated parents’ constitutional right to have their

children instructed in a foreign language, this Court referred not merely to parents’ rights to care

for children but to citizens’ rights “to marry, establish a home and bring up children.”15

In

Skinner v. Oklahoma ex rel. Williamson, concerning a law punishing certain classifications of

felons with forced sterilization, the Court opined: “Marriage and procreation are fundamental to

the very existence and survival of the race.”16

Similarly, in Zablocki v. Redhail, which struck down a Wisconsin law restricting

marriage for certain child support debtors, the Court wrote: “[I]t would make little sense to

recognize a right of privacy with respect to other matters of family life and not with respect to

the decision to enter the relationship that is the foundation of the family in our society.”17

As in

Loving, Zablocki reiterated that marriage is “fundamental to our very existence and survival,”18

and recognized, additionally the right to “deci[de] to marry and raise the child in a traditional

family setting.”19

14

388 U.S. 1, 12 (1967).

15 262 U.S. 390, 399 (1923).

16 361 U.S. 535, 541 (1942).

17 434 U.S. 374, 386 (1978).

18 Id. at 383.

19 Id. at 386.


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The 1977 opinion in Moore v. City of East Cleveland, announcing a blood-and-marriage-

related family’s constitutional right to co-reside, nonetheless referenced the procreative aspect of

family life stating: “the institution of the family is deeply rooted in this Nation's history and

tradition. It is through the family that we inculcate and pass down many of our most cherished

values, moral and cultural.”20

Similarly, in Parham v. J.R., a case treating parents’ rights to direct

their children’s health care, the Court stated: “Our jurisprudence historically has reflected

Western civilization concepts of the family as a unit with broad parental authority over minor

children.”21

B. States have substantial interest in the way marriage socializes children.

A second prominent theme in the Supreme Court’s prior cases touching upon marriage is

the unique importance of the marital family for forming and educating citizens for the

continuation of a free, democratic society.

Preliminarily, in cases in which natural parents’ interests in directing children’s

upbringing have conflicted with the claims of another, the Supreme Court has approvingly noted

the importance of the bond between parents and their natural children. This is found in its

observations that states presume that biological parents’ “natural bonds of affection” lead them

to make decisions for their children that are in the children’s best interests. Statements in this

vein have been made in Parham v. J.R. (“historically [the law] has recognized that natural bonds

of affection lead parents to act in the best interests of their children”22

), in Smith v Organization

of Foster Families for Equality & Reform (families’ “blood relationship” forms part of the

20

431 U.S. 494, 503–04 (1977).

21 442 U.S. 584, 602 (1979).

22 Id. at 602.


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“importance of the familial relationship, to the individuals involved and to the society”23

), and in

the “grandparents’ rights” case of Troxel v. Granville (“there is a presumption that fit parents act

in the best interests of their children”24

).

Moreover, for over 100 years, the Supreme Court has reiterated the relationship between

marriage and childrearing for the benefit of a functioning democracy. In Murphy v. Ramsey, for

example, the Court opined:

For certainly no legislation can be supposed more wholesome and necessary in the

founding of a free, self-governing commonwealth . . . than that which seeks to establish it

on the basis of the idea of the family, as consisting in and springing from the union for

life of one man and one woman in the holy estate of matrimony; the sure foundation of

all that is stable and noble in our civilization; the best guaranty of that reverent morality

which is the source of all beneficent progress in social and political improvement.25

The 1888 decision of Maynard v. Hill referred to marriage as “having more to do with the

morals and civilization of a people than any other institution,” and thus marriage is continually

“subject to the control of the legislature.”26

And in 1943, in the course of an opinion affirming

parents’ authority over their children within the limits of child labor laws, the Court explicitly

linked good childrearing practices to a healthy society, saying: “A democratic society rests, for

its continuance, upon the healthy well-rounded growth of young people into full maturity as

citizens, with all that implies.”27

Reflecting upon states’ continual interest in marriage legislation, in a case concerning the

affordability of divorce process, Justice Black’s dissenting opinion (objecting to the expansion of

23

431 U.S. 816, 844 (1977).

24 530 U.S. 57, 68 (2000).

25 114 U.S. 15, 45 (1885).

26 125 U.S. 190, 205 (1888).

27 Prince v. Massachusetts, 321 U.S. 158, 168 (1944).


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the contents of the federal Due Process Clause) in Boddie v. Connecticut, asserted that: “The

States provide for the stability of their social order, for the good morals of all their citizens and

for the needs of children from broken homes. States, therefore, have particular interests in the

kinds of laws regulating their citizens when they enter into, maintain and dissolve marriages.”28

In the 1977 case in which the Supreme Court refused to extend equal parental rights to

foster parents, the court wrote about the relationships between family life and the common good

stating: “Thus the importance of the familial relationship, to the individuals involved and to the

society, stems from the emotional attachments that derive from the intimacy of daily association,

and from the role it plays in ‘promot[ing] a way of life’ through the instruction of children, as

well as from the fact of blood relationship.”29

As recently as 1983, in the single father’s rights case, Lehr v. Robertson, the Supreme

Court referenced the social purposes of the family quite explicitly in terms of states’ legitimate

interest in maintaining the link between marriage and procreation. Refusing to treat an unmarried

father identically to a married father with respect to rights concerning the child, the Court wrote:

“marriage has played a critical role . . . in developing the decentralized structure of our

democratic society. In recognition of that role, and as part of their general overarching concern

for serving the best interests of children, state laws almost universally express an appropriate

preference for the formal family.”30

28

401 U.S. 371, 389 (1971) (Black, J., dissenting).

29 Org. of Foster Families, 431 U.S. at 844 (citation omitted).

30 463 U.S. 248, 257 (1983).


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In summary, it is fair to conclude, upon a review of the Supreme Court’s family law

jurisprudence, that states’ interests in the procreational aspects of marriage have been both

recognized by the Supreme Court and affirmed to be not only legitimate, but essential.

C. An adult-centered view of marriage overlooks children.

Undoubtedly the state also values adults’ interests in marriage: adult happiness, mutual

commitment, increased stability, and social esteem. Yet a view of marriage that focuses solely

on these adult-centric interests is incomplete and denies the Supreme Court’s decisions affirming

the states’ interests in procreation and healthy childrearing by stably linked, biological parents. It

also risks institutionalizing, in law and culture, a notion of marriage that is at the core of an

alarming “retreat from marriage” among disadvantaged Americans. (See, infra, Section III.).

Same-sex marriage proponents take great pains to excise references to children when quoting the

Supreme Court’s family law opinions. In their Complaint and Trial Memorandum in Perry, for

example, the plaintiffs referenced from Loving v. Virginia only the language about marriage as a

“basic civil right[]” of adults, or a “vital personal right[] essential to the orderly pursuit of

happiness by free men,” leaving out Loving’s immediately adjoining reference to marriage as the

fount of society.31

They similarly quoted Cleveland Board of Education v. La Fleur32

without

noting that the freedom at issue was a married teacher’s “deciding to bear a child.”33

Perhaps the most egregious example in Perry was the selective quotation from the

Supreme Court’s opinions addressing the meaning of marriage in Turner v. Safley, the case in

31

Compl. for Declaratory, Injunctive, or other Relief 1, E.C.F. No 1; Pls.’ & Pl.-Intervenor’s Trial Mem.

3, ECF. No. 281. As noted, Loving concludes that marriage and family are “fundamental to our very

existence and survival.” 388 U.S. at 12.

32 Trial Mem. 3–4, ECF. No. 281 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974)

(“personal choice in matters of marriage and family life”)).

33 414 U.S. at 640.


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which the Supreme Court held that certain prisoners were required to have access to state-

recognized marriage.34

There, the plaintiffs cited Turner for the proposition that civil marriage is

an “‘expression . . . of emotional support and public commitment,’” and “an exercise in spiritual

unity, and a fulfillment of one’s self.”35

The district court’s Findings of Fact and Conclusions of

Law did likewise, selectively quoting only the adult-related aspects of the Supreme Court’s

statements about the meaning of marriage and excising references to procreation.36

However, Turner explicitly acknowledged, in two ways, both the adults’ and the

procreative interests in marriage. First, Turner concluded that adults’ interests were only

“elements” or “an aspect” of marriage,37

but that marriage had other “incidents” that prisoners

would eventually realize, referring specifically to consummation, i.e. heterosexual intercourse

with a spouse.38

Second, Turner distinguished the situation of prisoners who would someday be

free, from that of prisoners whom a state refused to permit to marry, on the grounds that life

imprisonment would foreclose the ability to parent and rear children.39

Turner noted that in

Butler v. Wilson,40

the Supreme Court had summarily affirmed the case of Johnson v.

Rockefeller,41

in which inmates imprisoned for life were denied marriage, in part upon the

rationale that they would not have the opportunity to procreate or rear children. Said the Johnson

court: “In actuality the effect of the statute is to deny to Butler only the right to go through the

34

482 U.S. 78 (1987).

35 Trial Mem. 6, ECF No. 281 (citing Turner v. Safley, 482 U.S. 78, 95–96).

36 See Findings of Fact 110, ECF No. 708.

37 482 U.S. at 95–96.

38 See id. at 96.

39 Id.

40 415 U.S. 953 (1974).

41 365 F. Supp. 377 (S.D.N.Y. 1973).


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formal ceremony of marriage. Those aspects of marriage which make it ‘one of the basic civil

rights of man’—cohabitation, sexual intercourse, and the begetting and raising of children—are

unavailable to those in Butler’s situation because of the fact of their incarceration.”42

In reality, proponents of same-sex marriage ask federal courts to insist that every state

recognize a new understanding of marriage. This new understanding would signify that what the

state values about sexually intimate couples is their emotional happiness and willingness to

commit to one another, exclusively, for a long time.43

In the case of same-sex couples, marriage

would additionally connote that the state, and society, are sorry for past discrimination and

stigmatizing of gays and lesbians. However, this understanding completely disregards the

procreative aspects of marriage which the Supreme Court has recognized as essential. At the

same time, it paints a picture of marriage closely associated with a retreat from marriage among

the most vulnerable Americans.

Notably, proponents of same-sex marriage acknowledge the power of marriage laws to

affect citizens’ perceptions and behavior. Indeed, a change of perceptions and behaviors, is

precisely what plaintiffs generally seek in bringing suit, and what courts have sought to achieve

42

Id. at 380 (citation omitted).

43 See Compl. 2, 7, ECF No. 1; Findings of Fact 67, ECF No. 708; Perry v. Brown, 671 F.3d 1052, 1078

(9th Cir. 2012). The Goodridge court and well-known same-sex marriage advocates urge a similar

meaning for marriage. See, e.g., Andrew Sullivan, Here Comes the Groom: A (Conservative) Case for

Gay Marriage, New Republic (Aug. 28, 1989), http://www.tnr.com/article/79054/here-comes-the-groom#

(describing marriage as a “deeper and harder-to-extract-yourself from commitment to another human

being”).


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in upholding similar claims.44

Plaintiffs in these cases specifically urge that marriage not be

understood to imply procreation.

There is only one group of children who consistently feature same-sex marriage

advocates’ arguments: children currently being reared in same-sex households. These advocates

claim that these children will be helped, indirectly, via the social approval that would flow to the

same-sex partners in their household were their “parents” married. Even this brief argument

mentioning children, however, is flawed.

First, it is not at all clear that granting marriage to same-sex partners equates with

bringing marriage into the lives of such children’s “parents.” Exact figures are unknown, but it

appears from at least one nationally representative sample of children who lived in same-sex

households before the age of 18,45

and a recent analysis of the U.S. Census,46

that the majority of

children were conceived in heterosexual relationships and are presently living with one

biological parent and that person’s same-sex partner. Tremendous uncertainty, therefore,

surrounds the questions of whether state recognition of same-sex marriage would bring “married

parents” to a large number of children and whether social approbation would follow.

Second, the “jury is still out” on whether parenting in a same-sex household advances the

state’s critical interest in children’s, and therefore society’s formation. Recently, a peer-

reviewed journal issued the first nationally representative study of children reared in a same-sex

44

See, e.g., Perry v. Brown, 671 F.3d 1052, 1078 (9th Cir. 2012) (suggesting that the state’s designation

of a relationship as a “marriage,” by itself “expresses validation, by the state and the community,” and is

“a symbol . . . of something profoundly important”).

45 Mark Regnerus, How different are the adult children of parents who have same-sex relationships?

Findings from the new family structures study, 41 Soc. Sci. Research 752 (2012).

46 Garry J. Gates, Family Focus on…LGBT Families: Family formation and raising children among

same-sex couples, National Council on Family Relations Report, Issue FF51, 2011.


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household.47

These children’s outcomes across a host of emotional, economic and educational

outcomes were diminished as compared with children reared by their opposite-sex parents in a

stable marriage. The author of the study acknowledged that the question of causation remains

unknown; however, the children’s outcomes might indicate problems with same-sex parenting,

or even problems with family structure instability, given that most children were conceived in a

prior heterosexual relationship by one of the adults later entering a same-sex relationship. The

latter possibility raises further questions about the overall stability of same-sex couples, and

about the role played by bisexuality. This is relevant to child well-being given that a consensus is

emerging among social scientists that many poor outcomes for children might be explained by

instability in their parents’ relationships.48

Importantly, same-sex marriage proponents’ attempt to redefine “marriage” to excise

childbearing and childrearing comes at a time in history when new empirical data shows that

childbearing and childrearing in marriage is threatened—a threat disproportionately visited upon

the most vulnerable populations. (See Section III.) States have responded to the data. In fact,

over the past 20 years, the legislatures in all 50 states have introduced bills to reform their

marriage and divorce laws precisely to better account for children’s interests in their parents’

marriages.49

The federal government has done the same, particularly via the marriage-promotion

sections of the landmark “welfare reform” law passed in 1996 by bipartisan majorities, and

47

See Mark Regnerus, supra.

48 Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the United States:

Demographic Perspectives and Implications for Family Policy, 26 Law & Policy 87, 94 (2004).

49 See, e.g., Lynn D. Wardle, Divorce Reform at the Turn of the Millennium: Certainties and Possibilities,

33 Fam. L.Q. 783, 790 (1999); Karen Gardiner et al., State Policies to Promote Marriage: Preliminary

Report, The Lewin Group (Mar. 2002).


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signed into law by President Clinton.50

Furthermore, Presidents Bush and Obama, in particular,

have promoted extensive federal efforts on behalf of marriage and fatherhood.51

In sum, the Court should recognize the Supreme Court’s many prior statements

supporting the interests of states in childbearing, childrearing and social stability that are

advanced by opposite-sex marriages. That states and the federal government may have ignored

children’s interests too much in the past, is not a reason why states may not choose, and are not

choosing today, to legislate to better account for both children’s and society’s robustly and

empirically supported interests in marriage.

III. Redefining marriage in a way that de-links sex, marriage and children can harm the

most vulnerable Americans and exacerbate the “marriage gap,” which is

responsible for increasing levels of social inequality in America.

The disappearing of children’s interests in marriage, both at law and in culture, and the

vaulting of adults’ emotional and status interests, are, today, robustly associated with a great deal

of harm, particularly among the most vulnerable Americans. This, in turn, has led to a growing

gap between the more and less privileged in the United States, threatening our social fabric.

Recognizing same-sex marriage would confirm and exacerbate these trends. Consequently, states

legitimately may wish to reconfirm their commitment to opposite-sex marriage on the grounds of

its procreative aspects, and refuse to grant marriage recognition to same-sex couples.

Speaking quite generally, law and culture before the 1960s, normatively held together

sex, marriage and children. Obviously, this was not true in the life of every citizen or family, but

50

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193

(1996).

51 See Helen M. Alvaré, Curbing Its Enthusiasm: U.S. Federal Policy and the Unitary Family, 2 Int’l J.

Jurisprudence Fam., 107, 121–24 (2011).


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social and legal norms widely reflected it. In the ensuring decades, however, these links

deteriorated substantially.

First, the link between sex and children weakened with the introduction of more

advanced birth control technology and abortion, both of which came to fore in the 1960s and

were announced to be constitutional rights by the Supreme Court in the 1960s and 1970s. Then,

the link between marriage and children was substantially weakened by the passage of no-fault

divorce laws during the 1970s. The transcripts of debates concerning the uniform no-fault

divorce law reveals the degree to which children’s interests were minimized in favor of adult

interests, sometimes with mistaken beliefs about children’s resiliency or on the false assertion

that failing marriages were acrimonious such that divorce would benefit, not harm children.52

New reproductive technologies further separated children from marriage and sex from

children. Since the creation of the first “test tube baby” in 1978, which spawned a billion dollar

industry in the United States, neither the federal government nor any states have passed

meaningful restraints on such practices. There are today, still, almost no laws affecting who may

access these technologies or obtain “donor” sperm, oocytes, or embryos.53

This persists despite

troubling indications that “donor children” experience an enhanced risk of physical or

psychological difficulties.54

Interwoven with these developments is the declining stigma of

52

See Helen M. Alvaré, The Turn Toward the Self in Marriage: Same-Sex Marriage and its Predecessors

in Family Law, 16 Stan. L. & Pol’y Rev. 101, 137–53 (2005).

53 See The President’s Council on Bioethics, Reproduction and Responsibility: The Regulation of New

Biotechnologies 8–12 (2003).

54 See Elizabeth Marquardt et al., My Daddy’s Name is Donor: A New Study of Young Adults Conceived

through Sperm Donation, Commission on Parenthood's Future, 2010; Jennifer J. Kurinczuk & Carol

Bower, Birth defects in infants conceived by intracytoplasmic sperm injection: an alternative explanation,

315 Brit. Med. J. 1260 (1997).


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nonmarital sex, and even nonmarital pregnancies and births, which further separate sex from

marriage, but not always from children.

The effects of these legal and social developments are not evenly distributed across all

segments of the population. In fact, a robust and growing literature indicates that more privileged

Americans—i.e. non-Hispanic Whites, and Americans with a college education—are

economically and educationally pulling away from other social classes to an alarming degree.55

In the words of prominent sociologists W. Bradford Wilcox and Andrew J. Cherlin:

In the affluent neighborhoods where many college-educated American live, marriage is

alive and well and stable families are the rule . . . . [T]he divorce rate in this group has

declined to levels not seen since the early 1970s. In contrast, marriage and family

stability have been in decline in the kinds of neighborhoods that we used to call working

class . . . . More . . . of them are having children in brittle cohabiting unions. . . . [T]he

risk of divorce remains high. . . . The national retreat from marriage, which started in

low-income communities in the 1960s and 1970s, has now moved into Middle America.56

By the numbers, Americans with no more than a high school degree, African Americans,

and some groups of Hispanic Americans, cohabit more, marry less often, divorce more, have

lower marital quality, and have more nonmarital births than those possessing a college degree,

sometimes by very large margins. The situation for those with less than a high school degree is

even more dire. A few comparisons portray the situation.

55

See, e.g., The Decline of Marriage and Rise of New Families, Pew Research Center (Nov. 18, 2010),

http://www. pewsocialtrends.org/2010/11/18/the-decline-of-marriage-and-rise-of-new-families/; Richard

Fry, No Reversal in Decline of Marriage, Pew Research Center (Nov. 20, 2012),

http://www.pewsocialtrends.org/2012/11/20/no-reversal-in decline-of-marriage/; Pamela J. Smock &

Wendy D Manning, Living Together Unmarried in the United States: Demographic Perspectives and

Implications for Family Policy, 26 Law & Pol’y 87 (2004); The National Marriage Project and the

Institute for American Values, When Marriage Disappears: The Retreat from Marriage in Middle

America, State of Our Unions (2010), http://nationalmarriageproject.org/resources/when-marriage-

disappears/ (last visited May 9, 2014). 56

W. Bradford Wilcox & Andrew J. Cherlin, The Marginalization of Marriage in Middle America,

Brookings, Aug. 10, 2011, at 2.


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18

Among Americans with a college degree or more, the nonmarital birth rate is a mere 6%.

Among those with only a high school degree, the rate is 44%, and among those without a high

school degree, the rate is 54%.57

Poor men and women are only half as likely to marry as those

with incomes at three or more times the poverty level.58

The children of these less-privileged

groups are far less likely to be living with both their mother and their father, more likely to have

a nonmarital pregnancy, and less likely to graduate college or to obtain adequate employment as

an adult.59

Experts attempting to diagnose this retreat from marriage in Middle America, certainly

identify economic factors, such as the decline in adequately paying work for men, and a belief by

both sexes that a man should have a stable job before entering marriage. But economic factors

cannot explain the entire retreat. Prior severe economic downturns were not accompanied by the

same retreat from marriage or increases in nonmarital childbearing.60

Similarly, law professor Amy Wax has concluded: “the limited research available

suggests that men who were once regarded as marriageable and were routinely married —

including many men with earnings in the lower end of the distributions—are now more likely to

remain single than in the past.” Furthermore, she points out, rationally speaking, that marriage

would bring certain gains to any two persons: two incomes, economies of scale, divisions of

57

Id.

58 Kathryn Edin & Joanna M. Reed, Why Don’t They Just Get Married? Barriers to Marriage among the

Disadvantaged, The Future of Children, Fall 15(2) 2005, at 117–18.

59 Wilcox & Cherlin, supra, at 6; The National Marriage Project, supra, at 10–11, 17 (citing Ron Haskins

& Isabel Sawhill, Creating an Opportunity Society (2009); Nicholas H. Wolfinger, Understanding the

Divorce Cycle: The Children of Divorce in Their Own Marriages (2005)).

60 See Wilcox & Cherlin, supra, at 3.


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19

labor, and gains from cooperation. But the less advantaged appear unmoved by such advantages,

for themselves or for their children.61

What best explains these trends among the disadvantaged are changes in norms regarding

the relationships between sexual activity, births and marriage. Among these, researchers note

legal changes emphasizing parenthood but not marriage (e.g. strengthened child support

enforcement laws), and emphasizing individual rights as distinguished from marriage. They also

point to the declining stigma of nonmarital sex, particularly among the lesser educated, and the

availability of the pill for separating sex and children.62

Professor Cherlin writes that law and

culture made other ways of living, as distinguished from marriage, not only more acceptable, but

also more practically feasible.63

Among the lesser privileged, stable employment for the man and a love relationship, are

the precursors for marriage. The disadvantaged are far less concerned than the more privileged

about having children without marriage. To them, marriage is not about children, and children do

not necessarily indicate the wisdom of marrying. And there is further evidence that this trend

away from linking children’s well-being to a stable home with both a mother and a father is

becoming characteristic not only of the disadvantaged, but also of the “millennial generation,” as

well.64

Professor Cherlin confirms that among young adults who are not necessarily poor, the

61

Amy L. Wax, Diverging family structure and “rational” behavior: the decline in marriage as a

disorder of choice, in Research Handbook on the Economics of Family Law 29–30, 31, 33 (Lloyd R.

Cohen & Joshua D. Wright, eds., 2011).

62 Wilcox & Cherlin, supra, at 3–4.

63 Andrew J. Cherlin, American Marriage in the Early Twenty-First Century, The Future of Children, Fall

15(2) 2005, at 41.

64 See Wendy Wang & Paul Taylor, For Millennials, Parenthood Trumps Marriage, Pew Research

Center, 2 (Mar. 9, 2011), http://www.pewsocialtrends.org/2011/03/09/for-millennials-parenthood-trumps-


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20

idea of “soulmate” marriage is spreading. Never-married Millennials report at a rate of 94% that

“when you marry, your want your spouse to be your soul mate, first and foremost.” They hope

for a “super relationship,” an “intensely private, spiritualized union, combining sexual fidelity,

romantic love, emotional intimacy, and togetherness.”65

There is also emerging evidence, concerning both the young and the less-privileged, that

marriage—once the gateway to adulthood and parenting—is viewed by the less privileged as a

“luxury good.” In the words of sociologists Kathryn Edin and Joanna Reed: “Marriage has

become a luxury, rather than a necessity, a status symbol in the true meaning of the phrase.”

These authors explain that the disadvantaged place very high expectations upon relationship

quality within marriage. “If this interpretation is correct, the poor may marry at a lower rate

simply because they are not able to meet this higher marital standard.”

Finally, there is a sense among the disadvantaged that marriage is reserved to those who

have “arrived” financially.66

This appears to be an increasingly widely shared view among

experts.67

Professor Cherlin points to an emphasis on emotional satisfaction and romantic love, and

an “ethic of expressive individualism that emerged around the 1960s.” There is a focus on bonds

of sentiment, and the emotional satisfaction of spouses becomes an important criterion for

marriage/ (on the question of a child’s need for two, married parents, 51% of Millennials disagreed in

2008, compared to 39% of Generation Xers in 1997).

65 Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. of Marriage & Fam. 848,

856 (2004).

66 Edin & Reed, supra, at 117, 121–122.

67 See, e.g., Pamela J. Smock, The Wax and Wane of Marriage: Prospects for Marriage in the 21st

Century, 66 J. of Marriage & Fam. 966, 971 (2004) (“success is difficult because marriage means so

much;” and the “current thinking [is] . . . that our high expectations for marriage are part of what is

behind the retreat from marriage”).


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21

marital success.68

Professor Cherlin continues, stating that in the later 20th century, “an even

more individualistic perspective on the rewards of marriage took root.” It was about the

“development of their own sense of self and the expression of their feelings, as opposed to the

satisfaction they gained through building a family and playing the roles of spouse and parent.

The result was a transition from the companionate marriage to what we might call the

individualized marriage.”69

If this is all marriage means, why then do people continue to marry at all? Professor

Cherlin opines that they may be seeking what he calls “enforceable trust,” a lowering of the risk

that one’s partner will renege on agreements.70

Rather than being any longer a foundation on

which to build a family life then, marriage becomes the “capstone” of a preexisting, emotionally

close relationship, with the wedding as a “symbol” of the couple’s financial status, and of their

level of self development.71

Yet marriage as merely a symbol of personal achievement is often

beyond the experience or reach of the lesser privileged. Increasingly visible expert literature

confirms that shifting cultural norms about marriage and procreation, the weakening of

institutional structures, and changes in notions of role responsibilities affect the least advantaged

to a greater degree.72

Particularly for the disadvantaged, there is an “underappreciated role for

traditional institutions in guiding behavior.”73

68

Cherlin, The Deinstitutionalization of American Marriage, supra, at 851.

69 Id. at 852.

70 Id. at 854.

71 Id. at 855, 857.

72 See, e.g., Wax, , supra, at 15, 59–60.

73 Id. at 60.


14-31037.1208

22

Notwithstanding these troubling trends, Professor Wax concludes that a “strong marriage

norm,” is an opportunity to “shape[] the habits of mind necessary to live up to its prescriptions,

while also reducing the need for individuals to perform the complicated calculations necessary to

chart their own course.”74

Of course, individuals’ decisions will be influenced by individual

characteristics and circumstances, but “nonetheless, by replacing a complex personal calculus

with simple prudential imperatives, a strong expectation of marriage will make it easier . . . for

individuals to muster the restraint necessary to act on long-term thinking.”75

A strong prescription in favor of marriage as the gateway to adult responsibilities and to

caring for the next generation would therefore again likely influence behavior in favor of bearing

and rearing children by stably linked, biological parents, ready and able to prepare children for

responsible citizenship. Simple rules and norms “place[] less of a burden on the deliberative

capacities and will of ordinary individuals.” If, however, individuals are left to guide sexual and

reproductive choices in a culture of individualism, “people faced with a menu of options engage

in a personal calculus of choice. Many will default to a local [short-term, personal gain]

perspective.”76

The “retreat from marriage” and marital childbearing affects not only individuals and

their communities. There is evidence that its problematic effects are being felt even at the

national level. Largely as a consequence of changes to family structure, including the

intergenerational effects of the absence or breakdown of marriage, there is a growing income and

wealth gap in the United States among the least educated, the moderately educated, and the

74

Id. at 60.

75 Id.

76 Id. at 61.


14-31037.1209

23

college educated. According to a leading study of this phenomenon, family structure changes

accounted for 50% to 100% of the increase in child poverty during the 1980s, and for 41% of the

increase in inequality between all Americans between 1976 and 2000.77 The National Marriage

Project even suggests that “it is not too far-fetched to imagine that the United States could be

heading toward a 21st century version of a traditional Latin American model of family life, where

only a comparatively small oligarchy enjoys a stable married and family life.”78

In conclusion, marriage historian John Witte Jr. has observed that:

The new social science data present older prudential insights about marriage with more

statistical precision. They present ancient avuncular observations about marital benefits

with more inductive generalization. They reduce common Western observations about

marital health into more precise and measurable categories. These new social science

data thus offer something of a neutral apologetic for marriage.79

The notion of marriage that same-sex advocates are describing, and demanding in court,

closely resembles the adult-centric view of marriage associated with the “retreat from marriage”

among disadvantaged Americans. It would intrinsically and overtly separate sex and children

from marriage, for every marriage and every couple and every child. It promotes a meaning of

marriage that empties it of the procreative interests understood and embraced by the Supreme

Court (and every prior generation). Rather, as redefined, marriage would merely become a

reparation, a symbolic capstone, and a personal reward, not a gateway to adult responsibilities,

including childbearing, childrearing and the inculcating of civic virtues in the next generation,

for the benefit of the larger society.

77

Molly A. Martin, Family Structure and Income Inequality in Families With Children, 1976-2000, 43

Demography 421, 423–24, 440 (2006).

78 The National Marriage Project and the Institute for American Values, supra, at 17.

79 John Witte, Jr., The Goods and Goals of Marriage, 76 Notre Dame L. Rev. 1019, 1070 (2001).


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24

Of course, it is not solely the fault of same-sex marriage proponents that we have come to

a “tipping point” regarding marriage in the United States, where if the procreational aspects of

marriage are not explicitly preserved and highlighted, additional harm will come upon vulnerable

Americans and our social fabric itself. The historic institution of marriage was already

weakened, likely emboldening same-sex marriage advocates to believe that a redefinition of

marriage was only a step, not a leap away. But in its essence, and in the arguments used to

promote it, same-sex marriage would be the coup de grâce to the procreative meanings and

social roles of marriage. It is hoped that the necessary movement for equality and

nondiscrimination for gays and lesbians will choose a new path, and leave marriage to serve the

crucial purposes it is needed to serve.

CONCLUSION

For the reasons discussed herein, the Court should rule for the Defendants.

Respectfully submitted,

/s/ John B. Wells

John B. Wells (Bar # 23970)

P. O. Box 5235

Slidell, LA 70469 (mail)

769 Robert Blvd. Suite 201D

Slidell, LA 70458 (physical)

(985) 641-1855

(985) 649-1536 (fax)

[email protected]

www.JohnWellsLaw.com

Counsel for Amicus Curiae Professor Helen M. Alvaré


mailto:[email protected]

http://www.johnwellslaw.com/

14-31037.1211

25

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing brief has been served via the

court’s EC/CMF system this 12th day of May 2014.

/s/ John B. Wells

John B. Wells


14-31037.1212

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA


Plaintiffs v. JAMES D. CALDWELL, et al.,

Defendants

CIVIL ACTION

NO. 13-5090 SECTION F(5)

JUDGE MARTIN L.C. FELDMAN MAGISTRATE MICHAEL NORTH

REF: ALL CASES

BRIEF OF AMICI CURIAE SOCIAL SCIENCE PROFESSORS IN SUPPORT OF DEFENDANTS

__________________________________________ F. EVANS SCHMIDT, La. Bar #21863 KOCH & SCHMIDT, L.L.C. 650 Poydras Street, Suite 2415 New Orleans, Louisiana 70130 Telephone: (504) 208-9040 Facsimile: (504) 208-9041 E-mail: [email protected]

FELIX J. STERNFELS, La. Bar #24891 Of Counsel LegalWorks Apostolate, PLLC 8230 Summa Ave., Suite A Baton Rouge, Louisiana 70809 Telephone: (540) 622-8070 Facsimile: (540) 622-2247

Attorneys for Amici Curiae Social Science Professors

Case 2:13-cv-05090-MLCF-ALC Document 91 Filed 05/12/14 Page 1 of 23

14-31037.1213

INTEREST OF AMICI CURIAE1

Amici have studied and published on parental and household distinctions and their

association with child and young-adult developmental outcomes. Amici’s expertise in these fields

will assist the Court’s consideration of the issues presented by this case. Amici include (in

alphabetical order):

• Douglas W. Allen (Ph.D., Economics, University of Washington) is Burnaby Mountain

Professor of Economics at Simon Fraser University, BC, Canada.

• David J. Eggebeen (Ph.D., Sociology, University of North Carolina) is an Associate

Professor of Human Development and Sociology at Penn State University.

• Alan J. Hawkins (Ph.D., Human Development and Family Studies, Penn State

University) is a Professor of Family Life at Brigham Young University.

• Byron R. Johnson (Ph.D., Criminology, Florida State University) is a Distinguished

Professor of Social Sciences at Baylor University.

• Catherine R. Pakaluk (Ph.D., Economics, Harvard University) is an Assistant Professor

of Economics at Ave Maria University and a Faculty Research Fellow at the Stein Center

for Social Research at Ave Maria University.

• Joseph Price (Ph.D., Economics, Cornell University) is an Assistant Professor of

Economics at Brigham Young University.

• Mark D. Regnerus (Ph.D., Sociology, University of North Carolina) is an Associate

Professor of Sociology at the University of Texas at Austin, and a Faculty Research

1 No party’s counsel authored this brief in whole or in part, and no one other than Amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief, and thus, Amici need not file a motion for leave to file this brief.

2


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Associate at the Population Research Center of the University of Texas.

SUMMARY OF THE ARGUMENT

A persistent claim by supporters of same-sex marriage is that there is “no difference” in

the outcomes of children raised by a biological mother and father and those who have been

raised by two women or two men. That claim has also been advanced by associations like the

American Psychological Association (APA). But as recent scholarship indicates, the claim is

difficult to support because nearly all of the studies upon which the “no difference” assertion is

based are rather limited, involving non-random, non-representative samples, often with relatively

few participants. Specifically, the vast majority of the studies were based on samples of fewer

than 100 parents or children, and typically representative only of well-educated, white women,

often with elevated incomes. These are hardly representative samples of the lesbian and gay

population raising children, and therefore not a sufficient basis to make broad claims about child

outcomes of same-sex parenting structures.

These and other methodological limitations make the APA’s confident “no difference”

conclusion suspect. The claim also contradicts longstanding research asserting the view that the

ideal environment for raising children is a stable biological mother and father. The science on

comparative parenting structures, especially the research on same-sex households, is relatively

new. Therefore, a claim that another parenting structure provides the same level of benefit should

be rigorously tested and based on sound methodologies and representative samples. Nearly all of

the studies cited by the APA fail to meet those criteria.

The only studies based on large, random, representative samples tended to reveal the

opposite conclusion, finding significant differences in the outcomes of children raised by parents

in a same-sex relationship and those raised by a married biological mother and father. What is

3


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clear is that much more study must be done on these questions. But there is no dispute that a

biological mother and father provide, on average, an effective and proven environment for

raising children. And it is reasonable to conclude that a mother and father function as a

complementary parenting unit and that each tends to contribute something unique and beneficial

to child development.

The State of Louisiana thus has a rational interest in supporting that proven parenting

structure by reserving the title and status of marriage to unions comprised of a man and a

woman.

ARGUMENT

I. Compelling Evidence Shows that Children Benefit from the Unique Parenting Contributions of Both Men and Women.

It is a well-established and well-regarded sociological finding that “[c]hildren who grow

up in a household with only one biological parent are worse off, on average, than children who

grow up in a household with both of their biological parents . . . regardless of whether the

resident parent remarries.” Sara McLanahan & Gary Sandefur, Growing Up With a Single

Parent: What Hurts, What Helps 1 (1994); see also Wendy D. Manning & Kathleen A. Lamb,

Adolescent Well-Being in Cohabiting, Married, & Single-Parent Families, 65 J. Marriage &

Fam. 876, 890 (2003) (“The advantage of marriage appears to exist primarily when the child is

the biological offspring of both parents.”); Kristen Anderson Moore et al., Marriage from a

Child’s Perspective, Child Trends Research Brief at 1-2 (2002) (“[I]t is not simply the presence

of two parents . . . but the presence of two biological parents that seems to support children’s

development.”).

A few decades ago Justice William Brennan recognized what was likely considered a

very unremarkable proposition when he stated that “the optimal situation for the child is to have

4


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both an involved mother and an involved father.” Bowen v. Gilliard, 483 U.S. 587, 614 (1987)

(Brennan, J. dissenting). Experts have long contended that both mothers and fathers make unique

contributions to parenting. As sociologist David Popenoe explains, “[t]he burden of social

science evidence supports the idea that gender-differentiated parenting is important for human

development and that the contribution of fathers to childrearing is unique and irreplaceable.”

David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood & Marriage

are Indispensable for the Good of Children & Society 146 (1996). Even Professor Michael

Lamb, a current advocate of same-sex marriage, supported this view before he became a

proponent of redefining marriage to include same-sex couples. He stated in no uncertain terms

that “[b]oth mothers and fathers play crucial and qualitatively different roles in the socialization

of the child.” Michael E. Lamb, Fathers: Forgotten Contributors to Child Development, 18

Human Dev. 245, 246 (1975).

Current research on the psycho-social development of children continues to affirm that

the complementarity of an intact family, with a mother and a father serving unique relational

roles, is optimal for a child’s healthy development. See, e.g., Ruth Feldman, Oxytocin and Social

Affiliation In Humans, 61 Hormones & Behav. 380-391 (2012) (noting the different roles that

mothers and fathers play across species, the importance of those differences to human

development, and suggesting that human oxytocin systems may account for the different yet

complementary maternal and paternal functions). Even same-sex marriage supporters like Dr.

Lamb have admitted that men and women are not “completely interchangeable with respect to

skills and abilities” and that “data suggests that the differences between maternal and paternal

behavior are more strongly related to either the parents’ biological gender or sex roles, than to

either their degree of involvement in infant care or their attitudes regarding the desirability of

5


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paternal involvement in infant care.” Trial transcript at 1064 and 1068, Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292).

Dr. Lamb’s statement is consistent with a great deal of scholarship on the distinct ways in

which separate maternal and paternal contributions promote positive child-development

outcomes. For example, distinctive maternal contributions are numerous and significant. The

natural biological responsiveness of a mother to her infant fosters critical aspects of neural

development and capabilities for interactivity in the infant brain.2 Mothers are also able to

extract the maximum return on the temporal investments of both parents in a two-parent home

because mothers provide critical direction for fathers on routine caretaking activities, particularly

those involving infants and toddlers. See Sandra L. Hofferth et al., The Demography of Fathers:

What Fathers Do, in Handbook of Father Involvement: Multidisciplinary Perspectives 81

(Catherine Tamis-Lamonda & Natasha Cabrera eds., 2002); Scott Coltrane, Family Man 54

(1996). This direction is needed in part because fathers do not share equally in the biological and

hormonal interconnectedness that develops between a mother and a child during pregnancy,

delivery, and lactation.

In comparison to fathers, mothers generally maintain more frequent and open

communication and enjoy greater emotional closeness with their children, in turn fostering a

sense of security in children with respect to the support offered by the family structure. Ross D.

Parke, Fatherhood 7 (Developing Child Series, Jerome Bruner et al. eds., 1996). Mothers’

2 See C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health 37-59 (C.H. Zeanah Jr. ed., 2d ed. 2000); M. DeWolff & M. van Izjendoorn, Sensitivity and Attachment: A Meta-Analysis on Parental Antecedents of Infant Attachment, 68 Child Dev. 571-91 (1997); M. Main & J. Solomon, Discovery of an Insecure-Disorganized Disoriented Attachment Pattern, in Affective Development in Infancy 95-124 (T.B. Brazelton & M.W. Yogman eds., 1986).

6


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typical mode of parent-child play is predictable, interactive, and geared toward joint problem-

solving, which helps children to feel comfortable in the world they inhabit. Eleanor Maccoby,

The Two Sexes 266-67 (1998);3 see also Parke, supra, at 5. Mothers also impose more limits and

tend to discipline more frequently, albeit with greater flexibility when compared with fathers.

Maccoby, supra, at 273.

Mothers also uniquely play a greater role in cultivating the language and communication

skills of their children. Parke, supra, at 6. Mothers help children understand their own feelings

and respond to the feelings of others, in part by encouraging open discussion of feelings and

emotions within the family unit. See Suzanne A. Denham et al., Prediction of Externalizing

Behavior Problems From Early to Middle Childhood: The Role of Parental Socialization and

Emotion Expression, in Development and Psychopathology 23-45 (2000); Maccoby, supra, at

272. Active maternal influence and input is vital to the breadth and depth of children’s social

ties, and mothers play a central role in connecting children to friends and extended family. Paul

R. Amato, More Than Money? Men’s Contributions to Their Children’s Lives?, in Men in

Families, When Do They Get Involved? What Difference Does It Make? 267 (Alan Booth &

Ann C. Crouter eds., 1998).

Fathers also make distinctive contributions to the upbringing of their children, and

positive paternal contributions play a key role in avoiding a variety of negative outcomes that

arise with greater frequency in homes where a father is not present. Having a father is associated

with an increase in positive outcomes for children in domains such as education, physical health,

3 Professor Maccoby, a distinguished feminist psychologist at Stanford University who championed the idea that sex differences were caused only by socialization, is now acknowledging the importance of biology in explaining sex differences in parenting. Maccoby, supra, at 314.

7


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and the avoidance of juvenile delinquency. McLanahan & Sandefur, supra (1994); Greg Duncan

& Jeanne Brooks-Gunn, Consequences of Growing Up Poor (1999). As Professor Norval Glenn

explains, “there are strong theoretical reasons for believing that both fathers and mothers are

important, and the huge amount of evidence of relatively poor average outcomes among

fatherless children makes it seem unlikely that these outcomes are solely the result of the

correlates of fatherlessness and not of fatherlessness itself.” Norval D. Glenn, The Struggle for

Same-Sex Marriage, 41 Soc’y 25, 27 (2004).

Fathers engage proactively in spontaneous play with their children, and “children who

roughhouse with their fathers . . . quickly learn that biting, kicking, and other forms of physical

violence are not acceptable.” Popenoe, supra, at 144. A study conducted by developmental

psychologist Daniel Paquette found that fathers are also more likely to supervise children at play

while refraining from intervention in the child’s activities, a pattern that stimulates “exploration,

controlled risk-taking, and competition.” Daniel Paquette & Mark Bigras, The Risky Situation: A

Procedure for Assessing the Father-Child Activation Relationship, 180 Early Childhood Dev. &

Care 33-50 (2010).4 Boys who do not regularly experience the love, discipline, and modeling of

a good father are more likely to engage in what is called “compensatory masculinity” where they

reject and denigrate all that is feminine and instead seek to prove their masculinity by engaging

in domineering and violent behavior. Popenoe, supra, at 157.

Paternal modes of play activity are only one example of the ways in which fathers

encourage their children to take risks. Compared to mothers, fathers are more likely to encourage

children to try new things and to embrace novel situations and challenges. See Parke, supra, at 6.

4 See Linda Carroll, Dads Empower Kids to Take Chances, NBCNEWS.com, June 18, 2010, http://www.msnbc.msn.com/id/37741738.

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One study summarized this aspect of paternal input and observed that “[f]athers, more than

mothers, conveyed the feeling that they can rely on their adolescents, thus fathers might provide

a ‘facilitating environment’ for adolescent attainment of differentiation from the family and

consolidation of independence.” Shmuel Shulman & Moshe M. Klein, Distinctive Role of the

Father in Adolescent Separation-Individuation, 62 New Dir. Child & Adolesc. Dev. 41, 53

(1993).

Fathers also tend to utilize a different discipline style than mothers, in that they discipline

with less frequency, but greater predictability and less flexibility in terms of deviating from pre-

determined consequences for particular behavior. See Thomas G. Powers et al., Compliance and

Self-Assertion: Young Children’s Responses to Mothers Versus Fathers, 30 Dev. Psychol. 980-

89 (1994). Children respond differently to paternal discipline, and are comparatively more likely

to resist maternal commands and comply with paternal requests. Maccoby, supra, at 274-75.

This may be one reason why a number of studies have found that paternal influence and

involvement plays an outsized role in preventing adolescent boys from breaking the law and

lowering the odds that a teenage girl will become pregnant. See, e.g., Paul R. Amato & Fernando

Rivera, Paternal Involvement and Children’s Behavior Problems, 61 J. Marriage & Fam. 375-84

(1999) (finding that paternal involvement is linked to lower levels of delinquency and criminal

activity, even after controlling for maternal involvement); Mark D. Regnerus & Laura B.

Luchies, The Parent-Child Relationship and Opportunities for Adolescents’ First Sex, 27 J. Fam.

Issues 159-83 (2006) (noting that a study of 2000 adolescents showed that father-daughter

relationship, rather than mother-daughter relationship, was an important predictor of whether and

when adolescent girls transitioned to sexual activity); see also W. Brad Wilcox et al., Why

Marriage Matters: Twenty-Six Conclusions from the Social Sciences 14, 22-23 (3d ed. 2011)

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(discussing evidence suggesting that female sexual development is slowed by early childhood

exposure to pheromones of biological father, and accelerated by regular early childhood

exposure to pheromones of adult male who is not child’s biological father).

In sum, a substantial body of evidence demonstrates that both mothers and fathers make

unique contributions to a child’s development. Same-sex parenting structures, by definition,

exclude either a mother or a father. Certainly same-sex couples, like other parenting structures,

can make quality and successful efforts in raising children. That is not in question. But the social

science evidence, especially evidence founded on conclusions from population-based samples,

suggests that there are unique advantages to a parenting structure consisting of both a mother and

a father, political interests to the contrary notwithstanding. Therefore it remains rational for

government to provide distinctive recognition and incentive to that proven parenting structure

through the status of marriage.

II. The Claim of “No Difference” in Outcomes of Children Raised by Gay and Lesbian Parents and Intact Biological Parents Is Empirically Undermined by Significant Methodological Limitations.

Decades of study on various parenting structures yield the near uniform conclusion that a

biological mother and father provide optimal child outcomes. Mark Regnerus, How Different Are

the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New

Family Structures Study, 41 Soc. Sci. Research 752, 763 (2012) [hereinafter How Different?]. So

the claim that another parenting relationship produces child outcomes just as good as (or even

better than) intact biological parents is a surprising proposition, to say the least, and one that

must be rigorously tested (and until then, viewed with healthy suspicion).5

5 Although outcomes of children raised by adoptive parents are often positive, outcomes for those children are not typically as positive as children raised by biological parents in an intact

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A closer examination of the studies purporting to show no difference between same-sex

parenting and parenting by biological parents suggests that they cannot bear the weight that

advocates place on them. Most striking is that rarely do claims of “no difference” emerge from a

large, random, representative sample of the population. While this can be attributed to the fact

that same-sex parents constitute a small population that is difficult to locate randomly, it

nevertheless ought to raise concern when such samples are used to support broad public policy

changes, like those at issue in this case. In short, it is scientifically suspect to claim “no

difference” with thin support.

The Eleventh Circuit has recognized these limitations in the research on gay and lesbian

parenting, noting “significant flaws in the studies’ methodologies and conclusions, such as the

use of small, self-selected samples; reliance on self-report instruments; politically driven

hypotheses; and the use of unrepresentative study populations consisting of disproportionately

affluent, educated parents.” Lofton v. Sec’y of Dep’t of Children and Family Servs., 358 F.3d

804, 825 (11th Cir. 2004).

A. The APA studies are based on small sample sizes.

Most of the studies that the American Psychological Association relies on to support its

no-difference conclusion “are based on small, non-representative, convenience samples of fewer

than 100 participants.” Loren D. Marks, Same-Sex Parenting and Children’s Outcomes: A

marriage, despite the rigorous screening process involved in adoption. Regnerus, How Different?, supra, at 754-55 (“[S]tudies of adoption—a common method by which many same-sex couples (but more heterosexual ones) become parents—have repeatedly and consistently revealed important and wide-ranging differences, on average, between adopted children and biological ones. In fact, these differences have been so pervasive and consistent that adoption experts now emphasize that ‘acknowledgement of difference’ is critical for both parents and clinicians when working with adopted children and teens.” (citing Brent Miller et al., Comparisons of Adopted and Non-Adopted Adolescents In A Large, Nationally Representative Sample, 71 Child Dev. 1458 (2000)).

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Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay

Parenting, 41 Soc. Sci. Res. 735, 736-38 (2012); see also Douglas W. Allen et al.,

Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld,

Demography November 2012, http://link.springer.com/article/10.1007/s13524-012-0169-

x/fulltext.html [hereinafter Comment on Rosenfeld] (“Although there has been considerable

research on the effect of family structure on child outcomes, almost none of the research using

nationally representative samples has included same-sex parents as part of the analysis.”).

The hallmark of a rigorous study is a large, representative pool of participants drawn

from a population-based random sample. Regnerus, How Different? supra, at 754. It is very

difficult to draw reliable conclusions from the data used in small samples because the

conclusions from such limited studies cannot be confidently extrapolated to the general

population and the risk of erroneously attributing statistical insignificance to between-group

comparisons (that is, mistakenly concluding that there are no differences between groups) is

high. Marks, supra, at 736.

Even analyzing matched samples, as a variety of studies have done, fails to mitigate the challenge of locating statistically-significant differences when the sample size is small. This is a concern in all social science, but one that is doubly important when there may be motivation to confirm the null hypothesis (that is, that there are in fact no statistically-significant differences between groups).

Regnerus, How Different?, supra, at 754.

A simple illustration shows the concern with small sample sizes. It is well established

that having a stepfather in the home tends on average to result in less optimal child outcomes.

Mark V. Flinn et al., Fluctuating Asymmetry of Stepchildren, 20 Evol. Hum. Behav. 465 (1999)

(“In summary, the absence of a genetic relationship between stepchildren and stepparents may

affect the quality and quantity of care—including specific behaviors that affect nutrition, sleep

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routines, hygiene, medical attention, work loads, instruction, comforting, protection and so

forth—with consequent affect on growth.”); Marilyn Coleman et al., Reinvestigating

Remarriage: Another Decade of Progress, 62 J. Marriage & Fam. 1288, 1293 (2000) (“[M]ost

researchers reported that stepchildren were similar to children living with single mothers on the

preponderance of outcome measures and that step-children generally were at a greater risk for

problems than were children living with both of their parents.”). That is relevant for the matter at

hand because every child in a “planned” gay or lesbian family has at least one nonbiological

“step” parent. But because of the small sample sizes of same-sex parents (especially gay fathers)

represented in the studies, these outcome differences have not often surfaced (or even been

evaluated), raising additional questions about the reliability of the studies purporting to show no

differences. Moreover, comparisons are most often made between children in heterosexual

stepfamilies and those in gay unions, a comparison that overlooks the general consensus about

the importance of biological connections.

Notably, one of the larger studies that the APA cites, but does not discuss, showed

significant outcome differences between children raised by same-sex parents and those raised by

biological parents in an intact relationship. “Overall, the study has shown that children of

married couples are more likely to do well at school in academic and social terms, than children

of cohabiting and homosexual couples.” Marks, supra, at 742-43 (quoting S. Sarantokas,

Children In Three Contexts: Family, Education, and Social Development, 21 Children Australia

23 (1996), and describing the study’s findings in detail, its comparative statistical strength, and

the APA’s puzzling de-emphasis of it).

B. The APA’s studies are largely based on homogeneous samples.

Not only are most of the studies claiming no differences in same-sex parenting based on

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small sample sizes, they also tend to draw upon “homogeneous samples of privileged lesbian

mothers to represent all same-sex parents.” Marks, supra, at 739. Many of the studies cited by

the APA, for example, include no minorities, using instead samples predominantly composed of

white, well-educated, middle-to-upper-class women. Id. at 738. As one study candidly

acknowledged, “the study sample was small and biased toward well-educated, white women with

high incomes. These factors have plagued other [same-sex parenting] studies, and remain a

concern of researchers in this field.” Id. (quoting Laura Lott-Whitehead & Carol T. Tully, The

Family Lives of Lesbian Mothers, 63 Smith Coll. Studies Soc. Work 275 (1993)); see also C.J.

Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025, 1029 (1992) (“Despite the

diversity of gay and lesbian communities, both in the United States and abroad, samples of

children [and parents] have been relatively homogenous . . . . Samples for which demographic

information was reported have been described as predominantly Caucasian, well-educated, and

middle to upper class.”).

Very few of the APA-cited studies on same-sex parenting analyzed the outcomes of

children raised by gay fathers. Only eight of the fifty-nine cited studies included gay fathers, and

only four of those included a heterosexual comparison group. Marks, supra, at 739. “Systematic

research has so far not considered developmental outcomes for children brought up from birth by

single gay men or gay male couples (planned gay father families), possibly because of the

difficulty of locating an adequate sample.” Fiona Tasker, Lesbian Mothers, Gay Fathers and

Their Children: A Review, 26 Dev. & Behav. Pediatr. 224, 225 (2005).

C. Most of the samples in the APA-cited studies relied on non-random, convenience sampling.

It is not surprising that the samples in these studies are so homogenous, given that most

of the people in them were recruited by use of non-random, convenience (snowball) sampling.

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Regnerus, How Different?, supra, at 753. For instance, one data-collection effort that has been

the subject of at least 19 different peer-reviewed publications to date “recruited entirely by self-

selection from announcements posted ‘at lesbian events, in women’s bookstores, and in lesbian

newspapers’ in Boston, Washington, and San Francisco.” Id. This method of recruitment was

common among the APA-cited studies. Id. Such “snowball sampling is known to have some

serious problems” because it is impossible to generalize the findings of such a specific subgroup

to the general population. Id. (quoting Tom A. Snijders, Estimation on the Basis of Snowball

Samples, 36 Bulletin de Methodologie Sociologique 59 (1992)).

Because such studies’ samples are garnered from people who have a great deal in

common with each other—and who chose to be studied—how well their findings characterize

the broader population of gay families remains unknown. “By their own reports, social

researchers examining same-sex parenting have repeatedly selected small, non-representative,

homogeneous samples of privileged lesbian mothers to represent all same-sex parents.” Marks,

supra, at 739; see also Walter R. Schumm, What Was Really Learned From Tasker &

Golombok’s (1995) Study of Lesbian & Single Parent Mothers?, 95 Psych. Reports 422, 423

(2004) (“[O]ne has to be very careful in interpreting research on homosexual issues and be wary

of outcomes when samples are very small and often nonrandom, so the null hypothesis is not

rejected but is used for political purposes as if a meaningful result had been obtained”).6

6 Other scholars have noted that studies purporting to show no difference between children raised by same-sex couples and those raised by married mothers and fathers share these significant limitations. One of the most extensive critiques of the research was offered by Professor Steven Lowell Nock of the University of Virginia. Nock Aff., Halpern v. Attorney General of Canada, Case No. 684/00 (Ontario Sup. Ct. Justice 2001), available at http://marriagelaw.cua.edu/ Law/cases/Canada/ontario/halpern/aff_nock.pdf. See also Glenn, supra, at 26-27; Schumm, supra, at 423; Robert Lerner & Althea K. Nagai, No Basis: What the Studies Don’t Tell Us About Same-Sex Parenting (Marriage Law Project, 2001).

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If these studies are used to shed light on the outcomes of children raised by highly

educated and affluent middle to upper class white women, their conclusions have merit. But the

studies ought not be generalized to the childhood and adolescent experiences of the wide

spectrum of gay and lesbian parents, since gay and lesbian parents are, in reality, economically,

racially, and socially far more diverse than those studies imply.

The issue is further complicated by the political climate surrounding the fundamental

definition of marriage. “Given the widespread support for same-sex marriage among social and

behavioral scientists, it is becoming politically incorrect in academic circles even to suggest that

arguments being used in support of same-sex marriage might be wrong.” Glenn, supra, at 25; see

also Judith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of Parents Matter?,

66 American Sociol. Rev. 159, 161 (2001) (“[T]oo many psychologists who are sympathetic to

lesbigay parenting seem hesitant to theorize at all” and are apt to “downplay the significance of

any findings of differences.”).

Given such limitations characteristic of a nascent area of social-science research, the vast

majority of the studies relied upon by the APA for its general claim that there is no difference in

outcomes of children raised by gay and lesbian parents and those raised by heterosexual parents

are poorly poised to address the broad propositions asserted in this case.

III. The Largest Population-Based Studies Do Not Confirm the “No Differences” Conclusion about Child Outcomes among Same-Sex Parents.

Recent research using larger, randomly selected, nationally representative samples

suggests that there are significant differences in the outcomes of children raised by parents who

have had a same-sex relationship and children raised by intact biological parents. This research,

called the New Family Structures Study (NFSS), was conducted on young adults with a very

large sample size of nearly 3,000 participants, comprising a racially, socioeconomically, and

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geographically diverse group reflective of the diversity noted in demographic mappings of the

gay and lesbian population in America. Regnerus, How Different?, supra, at 755, 757. The study

surveyed adults aged 18-39 about their parent(s)’ past same-sex relationships, which occurred as

recently as a few years ago or as far back as 30 or more years.7 Among that sample, 175 people

reported living with a mother who was (and may still be) in a same-sex romantic relationship,

and 73 reported living with a father who had been in a same-sex romantic relationship.

The study looked at “social behaviors, health behaviors, and relationships” comparing

child outcomes (as reported by the adult children rather than their parents) among various

groups, including married biological parents, stepparents, single parents, and parents who had

been in a same-sex romantic relationship. “When compared with children who grew up in

biologically (still) intact, mother-father families, the children of women who reported a same-sex

relationship look markedly different on numerous outcomes, including many that are obviously

suboptimal (such as education, depression, employment status, or marijuana use).” Id. at 764.

Some of the statistically significant differences where adult children who reported living in a

household with their mother and her partner for at least some period of time (denoted below as

“MLR”—that is, mother in a lesbian relationship) fared worse than children raised by intact

biological parents (denoted below as “IBF”—that is, intact biological family) included:

• receiving welfare while growing up (17% of the IBF group and 70% of the MLR group),

• currently receiving public assistance (10% of the IBF group and 49% of the MLR group),

• current full-time employment status (49% of the IBF group and 17% of the MLR group),

• current unemployment (8% of the IBF group and 40% of the MLR group),

7 The NFSS may best capture what might be called an “earlier generation” of children of same-sex parents, and includes among them many who witnessed a failed heterosexual union.

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• having an affair while married or cohabitating (13% of the IBF group and 38% of the MLR group),

• having been touched sexually by a parent or other adult caregiver (2% of the IBF group and 26% of the MLR group), and

• having been forced to have sex against their will (8% of the IBF group and 27% of the

MLR group).

Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life

Outcomes for Adult Children: Answering Critics of the New Family Structures Study with

Additional Analysis, 41 Soc. Sci. Res. 1367, 1372-74 (2012) [hereinafter Parental Same-Sex

Relationships]; see also Douglas W. Allen, High school graduation rates among children of

same-sex households, Rev. Econ. Household, Sept. 2013 (“Children living with gay and lesbian

families in 2006 were about 65% as likely to graduate compared to children living in opposite

sex marriage families.”).

Because of the smaller sample size for fathers who have had gay relationships, there were

not as many significant findings as compared to mothers who have had lesbian relationships.

Nevertheless, adult children of fathers who are or have been in a same-sex relationship “are more

apt than [adult children raised by intact biological parents] to smoke, have been arrested, pled

guilty to non-minor offenses, and report more numerous sex partners.” Regnerus, How

Different?, supra, at 764.

The study does not purport to assess causation or definitively answer political questions

about family structures. Indeed, it would be difficult, if not impossible, to precisely determine

causation under these circumstances. Moreover, instability was a hallmark of the majority of

those relationships that were residential (with the parent and partner living with the respondent

child), and comparatively few lasted for more than five years. But it is noteworthy that the

groups display numerous significant distinctions, which raises skepticism about the APA’s

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confident declarative “no differences” conclusion.

When the NFSS-based study was released in summer 2012, it initiated much heated

discussion about same-sex parenting, and encountered widespread criticism and a level of

scrutiny unusual for a published sociological study based on nationally representative data.

Regnerus, Parental Same-Sex Relationships, supra, at 1367. Despite the attention and scrutiny,

the study remains in print and subsequent analyses of the (now publicly-accessible) data have

revealed no analytic errors. One of the most frequent criticisms by supporters of same-sex

marriage was that the study compared “apples to oranges” because it compared the adult children

of stably intact biological parents with adult children of stably intact same-sex households and

adult children whose mother or father left a heterosexual union for a same-sex one. Id.

But as the author’s follow-up study noted, that criticism is unfair for at least two reasons.

First, “if stability is a key asset for households with children, then it is sensible to use intact

biological families in any comparative assessment.” Id. at 1368. Indeed, a primary problem of

nearly all previous studies is that they seldom included a married biological family control

group. Id. at 1368-69. Second, that most of the same-sex households in the study were unstable

at some point does not mean that the study undercounted stable same-sex households; it

suggested that—in the era studied—same-sex relationships were often short-lived. Id. The latter

alternative is possible, if not probable, given other research on the comparative volatility of

lesbian relationships.

A study of Norwegian and Swedish same-sex marriages notes that divorce risk is higher in same-sex marriages and that the ‘risk of divorce for female partnerships actually is more than twice that for male unions’. Moreover, early same-sex marriages—those occurring shortly after a shift in marriage law—exhibited a similar risk of divorce as did more recent unions, suggesting no notable variation in instability over time as a function of new law or pent-up demand among more stable, longstanding relationships. The study authors estimate that in Sweden, 30% of female marriages are likely to end in divorce within 6 years of formation,

19


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compared with 20% for male marriages and 13% for heterosexual ones.

Id. at 1370 (emphasis added) (quoting Gunnar Anderson et al., The Demographics of Same-Sex

Marriages In Norway and Sweden, 43 Demography 79, 89 (2006)).8

Although this unanswered, empirically unknown question remains, what is clear is that

there remains much to be studied in this domain, and hence confident assertions of “no

difference” ought to be viewed with suspicion. As the study’s author indicated:

Perhaps in social reality there are really two ‘gold standards’ of family stability and context for children’s flourishing—a heterosexual stably-coupled household and the same among gay/lesbian households—but no population-based sample analysis is yet able to consistently confirm wide evidence of the latter. Moreover, a stronger burden of proof than has been employed to date ought to characterize studies which conclude ‘no differences’, especially in light of longstanding reliance on nonrandom samples of unknown bias and the high risk of making [significant] errors in small-sample studies. Simply put, the science here is young. Until much larger random samples can be drawn and evaluated, the probability-based evidence that exists suggests that the biologically-intact two-parent household remains an optimal setting for long-term flourishing of children.

Id. at 1377 (citations omitted); see also Walter R. Schumm, Methodological Decisions and the

Evaluation of Possible Effects of Different Family Structures on Children: The New Family

Structures Survey, 41 Soc. Sci. Research 1357-66 (2012) (validating methodological decisions in

New Family Structures Study, and noting similar decisions in other large-scale surveys).

Other population-based studies have similarly identified better outcomes for children

raised by a biological mother and father than children raised in other parenting structures. In

assessing group differences in academic progress through school, Michael J. Rosenfeld noted no

differences in school progress for children raised by same-sex parents. Michael J. Rosenfeld,

Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010).

8 Although gay men’s relationships appear more stable than lesbian relationships, they are less likely to be monogamous. Id. (citing Colleen Hoff & Sean Beougher, Sexual Agreements Among Gay Male Couples, 39 Arch. Sex. Beh. 774 (2010)).

20


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But a reanalysis of his high-quality, census-based sample—this time including the children of all

couples, not just those who were residentially stable for at least five years—revealed that

“children being raised by same-sex couples are 35% less likely to make normal progress through

school.” Allen, Comment on Rosenfeld, supra (noting findings that “are strikingly different from

those of the original [Rosenfeld] study”). Thus Rosenfeld’s original ‘‘no differences’’ conclusion

may be a result of dropping more unstable households from his analytic sample.

Indeed, no existing study yet bears the ability to randomly compare large numbers of

children raised by gay couples with the same among heterosexual couples over a long period of

time. The social science of same-sex parenting structures remains young, and subject to

significant limitations about what can be known, given that the influence of household structures

and experiences on child outcomes is not a topic for experimental research design. Yet those

analyses that employ large population-based samples continue to document basic differences and

raise questions about the comparative stability of family forms. With significant unanswered

questions about whether children develop as well in same-sex as in opposite-sex households, it

remains prudent for government to continue to recognize marriage as a man-woman union,

thereby promoting what is known to be an ideal environment for raising children.

CONCLUSION For the foregoing reasons, Amici urge this Court to rule for the Defendants.


KOCH & SCHMIDT, L.L.C.

F. Evans Schmidt F. EVANS SCHMIDT, La. Bar #21863 650 Poydras Street, Suite 2415 New Orleans, Louisiana 70130 Telephone: (504) 208-9040 Facsimile: (504) 208-9041 E-mail: [email protected]

21


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FELIX J. STERNFELS, La. Bar # 24891 Of Counsel LegalWorks Apostolate, PLLC 8230 Summa Ave., Suite A Baton Rouge, Louisiana 70809 Telephone: (540) 622-8070 Facsimile: (540) 622-2247 Attorneys for Amici Curiae Social Science Professors

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I hereby certify that on May 12, 2014, I electronically filed the foregoing with the Clerk

of the Court for the United States District Court for the Eastern District of Louisiana by using the

CM/ECF system. All participants in the case are registered CM/ECF users and will be served by

the CM/ECF system.

/s/ F. Evans Schmidt Attorney for Amici Curiae Social Science Professors

23


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TABLE OF AUTHORITIES

Cases

Bowen v. Gilliard, 483 U.S. 587 (1987) .............................................................................................................5

Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004) ...........................................................................................14

Other Authorities

Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography, November 2012, http://link.springer.com/article/10.1007/s13524-012-0169-x/fulltext.html .................14, 26

Douglas W. Allen, High school graduation rates among children of same-sex households, Rev. Econ. Household, Sept. 2013 ....................................................................................22

Paul R. Amato, More Than Money? Men’s Contributions to Their Children’s Lives?, in Men in Families, When Do They Get Involved? What Difference Does It Make? 267 (1998) ................................................................................................................8

Paul R. Amato & Fernando Rivera, Paternal Involvement and Children’s Behavior Problems, 61 Journal of Marriage and the Family 375 (1999) .................................................................................11

Linda Carroll, Dads Empower Kids to Take Chances, NBCNEWS.com, June 18, 2010, http://www.msnbc.msn.com/id/37741738 .........................................................................10

Marilyn Coleman et al., Reinvestigating Remarriage: Another Decade of Progress, 62 Journal of Marriage and the Family 1288 (2000) ...............................................................................15

Scott Coltrane, Family Man (1996) ..............................................................................................................7

Suzanne A. Denham et al., Prediction of Externalizing Behavior Problems From Early to Middle Childhood: The Role of Parental Socialization and Emotion Expression, in Development and Psychopathology 23 (2000) ....................................................................8

Case 2:13-cv-05090-MLCF-ALC Document 91-1 Filed 05/12/14 Page 1 of 4

14-31037.1236

M. DeWolff & M. van Izjendoorn, Sensitivity and Attachment: A Meta-Analysis on Parental Antecedents of Infant Attachment, 68 Child Development 571 (1997) ........................................................6

Greg Duncan & Jeanne Brooks-Gunn, Consequences of Growing Up Poor (1999) .........................................................................9

Ruth Feldman, Oxytocin and Social Affiliation In Humans, 61 Hormones and Behavior 380 (2012) ............................................................................................................................5

Mark V. Flinn et al., Fluctuating Asymmetry of Stepchildren, 20 Evolution of Human Behavior 465 (1999) ..........................................................................................................................15

Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Society 25 (2004) ...................................9, 19, 20

Sandra L. Hofferth et al., The Demography of Fathers: What Fathers Do, in Handbook of Father Involvement: Multidisciplinary Perspectives 81 (2002) ......................................................7

Michael E. Lamb, Fathers: Forgotten Contributors to Child Development, 18 Human Development 245 (1975) .....................................................................................................5

Robert Lerner & Althea K. Nagai, No Basis: What the Studies Don’t Tell Us About Same-Sex Parenting (Marriage Law Project, 2001) ............................................................................................19

Eleanor Maccoby, The Two Sexes (1998) ................................................................................................7, 8, 11

M. Main & J. Solomon, Discovery of an Insecure-Disorganized/Disoriented Attachment Pattern, in Affective Development in Infancy 95 (1986) ..................................................................6

Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, & Single-Parent Families, 65 Journal of Marriage and the Family 876 (2003) .............................................................4

Loren D. Marks, Same-Sex Parenting and Children’s Outcomes: A Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay Parenting, 41 Social Science Research 735 (2012) ...................................14, 15, 16, 17, 19


14-31037.1237

Sara McLanahan & Gary Sandefur, Growing Up With a Single Parent: What Hurts, What Helps 1 (1994) ...........................4, 9

Kristen Anderson Moore et al., Marriage from a Child’s Perspective, Child Trends Research Brief (2002) .......................4

C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health 37, (2d ed. 2000) ............................6

Affidavit of Professor Steven Lowell Nock, Halpern v. Attorney General of Canada, Case No. 684/00 (Ontario Sup. Ct. Justice 2001), available at http://marriagelaw.cua.edu/Law/ cases/Canada/ontario/halpern/aff_nock.pdf .......................................................................19

Daniel Paquette & Mark Bigras, The Risky Situation: A Procedure for Assessing the Father-Child Activation Relationship, 180 Early Childhood Development and Care 33 (2010) ...................................................................................................................................9

Ross D. Parke, Fatherhood (1996) .....................................................................................................7, 8, 10

C.J. Patterson, Children of Lesbian and Gay Parents, 63 Child Development 1025 (1992) ....................17

Trial transcript at 1064 and 1068, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292) ...........................................................................................6

David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood & Marriage are Indispensable for the Good of Children & Society 146 (1996) .........................................................................................................................5, 9, 10

Thomas G. Powers et al., Compliance and Self-Assertion: Young Children’s Responses to Mothers Versus Fathers, 30 Developmental Psychology 980 (1994) .............................................11

Mark D. Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Social Science Research 752 (2012) ..................................................................................... passim

Mark D. Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family


14-31037.1238

Structures Study with Additional Analysis, 41 Social Science Research 1367 (2012) ......................................................................................................22, 23, 24, 25

Mark D. Regnerus & Laura B. Luchies, The Parent-Child Relationship and Opportunities for Adolescents’ First Sex, 27 Journal of Family Issues 159 (2006) .....................................................................11

Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010) ....................................................................................................26

Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in Adolescent Separation-Individuation, 62 New Directions for Child and Adolescent Development 41 (1993) ..................................10

Walter R. Schumm, What Was Really Learned From Tasker & Golombok’s (1995) Study of Lesbian & Single Parent Mothers?, 95 Psychological Reports 422 (2004) ......................19

Walter R. Schumm, Methodological Decisions and the Evaluation of Possible Effects of Different Family Structures on Children: The New Family Structures Survey, 41 Social Science Research 1357 (2012) ..............................................................25

Judith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 American Sociological Review 159 (2001) ........................................................................................20

Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26 Developmental and Behavioral Pediatrics 224 (2005) ......................................................18

W. Brad Wilcox et al., Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences, 14 (3d ed. 2011) .................................................................................................................11


14-31037.1239

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ....................................................................................................1

SUMMARY OF THE ARGUMENT ..............................................................................................2

ARGUMENT ...................................................................................................................................4

I. Compelling Evidence Shows that Children Benefit from the Unique Parenting Contributions of Both Men and Women ..............................................................................4

II. The Claim of “No Difference” in Outcomes of Children Raised by Gay and Lesbian Parents and Intact Biological Parents Is Empirically Undermined by Significant Methodological Limitations ............................................................................12

A. The APA studies are based on small sample sizes ......................................................14

B. The APA’s studies are largely based on homogeneous samples .................................16

C. Most of the samples in the APA-cited studies relied on non-random, convenience sampling .......................................................................................................................18

III. The Largest Population-Based Studies Do Not Confirm the “No Differences” Conclusion about Child Outcomes among Same-Sex Parents ..............................................................20

CONCLUSION ..............................................................................................................................27

CERTIFICATE OF SERVICE ......................................................................................................29


14-31037.1240

United States District Court for the



Plaintiffs

v.


Defendants.

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

CIVIL ACTION

NO. 13- 5090

(CONSOLIDATED

WITH 14-00097)

SECTION F(5)



REF: ALL CASES

***************************************

BRIEF AMICI CURIAE OF LAMBDA LEGAL DEFENSE AND EDUCATION FUND,

INC., ACLU FOUNDATION OF LOUISIANA, AND

NATIONAL CENTER FOR LESBIAN RIGHTS

IN SUPPORT OF PLAINTIFFS

Justin P. Harrison1 (La Bar No. 33575)

Legal Director

ACLU Foundation of Louisiana

P.O. Box 56157

New Orleans, Louisiana 70156

Tel. (504) 522-0628

Email: [email protected]

1 Attorneys Beatrice Dohrn, Susan Sommer, Shannon Minter and Camilla Taylor

contributed to the writing of this brief but are not admitted to practice in State of Louisiana.


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AMICI’S IDENTITY, INTERESTS, AND AUTHORITY TO FILE2

Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) is a non-profit

national organization committed to achieving full recognition of the civil rights of lesbian, gay,

bisexual, and transgender (“LGBT”) people and those living with HIV through impact litigation,

education, and public policy work. Lambda Legal has participated as party or amicus counsel in

numerous challenges to state laws prohibiting same-sex couples from marrying or receiving

legal respect for their existing marriages including as plaintiffs’ counsel in Henry v. Himes, No.

1:14- cv-129, 2014 U.S. Dist. LEXIS 51211 (S.D. Ohio Apr. 14, 2014), declaring facially

unconstitutional laws similar to those at issue here, and Varnum v. Brien, 763 N.W.2d 862 (Iowa

2009), declaring Iowa’s marriage ban unconstitutional. Lambda Legal has participated in the

leading Supreme Court cases redressing sexual orientation discrimination, as party counsel in

Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), and as

amicus in United States v. Windsor, 133 S. Ct. 2675 (2013). Lambda Legal has both an interest

in protecting lesbian and gay couples and their children in every state of the nation and extensive

expertise in the issues before this Court.

The ACLU Foundation of Louisiana is the non-profit advocacy and litigation arm of the

ACLU of Louisiana, which is the state affiliate of the American Civil Liberties Union. The

ACLU is the nation’s leading organization dedicated to the defense of the constitutional rights of

everyone in this country. As a non-profit, non-partisan organization, the ACLU has defended

the civil liberties of all segments of society without regard to political affiliation or belief. The

2 This amicus brief is filed in accordance with the Court’s March 20, 2014 Order. [Rec.

Doc. 75]. No party’s counsel authored the brief in whole or in part; no party or party’s

counsel contributed money intended to fund preparing or submitting this brief; and no

person other than amici, their members, or their counsel contributed money intended to fund

preparing or submitting the brief.


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ACLU Foundation of Louisiana has participated in many of the leading constitutional cases

litigated in Louisiana and has a strong organizational commitment to ensuring the fair and equal

treatment of all people in Louisiana.

The National Center for Lesbian Rights (“NCLR”) is a non-profit legal organization

dedicated to protecting and advancing the civil rights of LGBT people and their families through

litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has

played a leading role in securing fair and equal treatment for LGBT people and their families in

cases across the country involving constitutional and civil rights. NCLR has a particular interest

in protecting same-sex couples and their children. NCLR has served as counsel for numerous

plaintiffs in litigation seeking the freedom to marry and the recognition of same-sex couples’

valid marriages in their states of residence, including currently in Kitchen v. Herbert, No. 13-

4178 (10th Cir); Tanco v. Haslam, No. 14-5297 (6th Cir.); and Latta v. Otter, No. 1:13-cv-

00482-CWD (D. Idaho).

Amici fully agree with all grounds Plaintiffs have advanced to strike down

Article XII, Section 15 of the Louisiana Constitution and Article 3520(B) of the Louisiana Civil

Code, which ban recognition of out-of-state marriages of same-sex couples (the “marriage

recognition bans” or “bans”). This brief focuses on the infringement of fundamental substantive

due process marriage rights, which requires that the bans be subject to strict scrutiny.

SUMMARY OF ARGUMENT

Recognizing that lesbian and gay individuals share the same fundamental right to marry

that all others enjoy, a growing number of states around the country have eliminated

discrimination in their marriage law, conferring on same-sex couples “a dignity and status of

immense import.” Windsor, 133 S. Ct. at 2681. Plaintiffs Jon Robicheaux, Derek Robicheaux,


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Courtney Blanchard, Nadine Blanchard, Lauren Brettner, Jacqueline Brettner, Nicholas Van

Sickels, Andrew Bond, Henry Lambert, Carey Bond, Havard Scott, III and Sergio March Prieto,

as well as the married Forum for Equality Louisiana members all wed in states that opened their

doors to same-sex couples and in so doing sought the full dignity, status, and legal protections

that come with marriage. Had they married different-sex spouses, Louisiana would have

welcomed the newlyweds home with open arms, granting full legal recognition to their

marriages. Louisiana’s 1999 legislative3 and 2004 constitutional bans

4 on recognition of out-of-

state marriages for same-sex couples deprive Plaintiffs of the right to due process protected

under the Fourteenth Amendment to the U.S. Constitution. For this reason and the others

asserted in Plaintiffs’ brief, Louisiana’s marriage recognition bans should be struck down.

The well-settled fundamental right to marry is about far more than obtaining a marriage

license and having a wedding ceremony – important as these are as the gateway to the institution

of marriage. The constitutionally-guaranteed right to marry would be worthless if the

government were free to refuse all recognition to a couple’s marriage once entered, effectively

annulling the marriage as if it had never occurred. Only when the wedding is over, the guests

are gone, and the couple returns home as spouses, does marriage as “a way of life” commence.

Griswold v. Connecticut, 381 U.S. 479, 486 (1965). In the words of the Supreme Court,

marriage is an “enduring” bond, a commitment to remain “together for better or for worse,” “a

bilateral loyalty,” “an association for [a] noble . . . purpose.” Id. This constitutionally-protected

“status is a far-reaching legal acknowledgment of the intimate relationship between two people,”

Windsor, 133 S. Ct. at 2692, a commitment of enormous import that spouses carry wherever they

go throughout their married lives. But as soon as married same-sex couples set foot in

3 See La. Civ. Code art. 3520(B).

4 See La. Const. art. XII, § 15.


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Louisiana, the State’s marriage recognition bans strip them of their rights and dignity as married

spouses. The bans strike at the heart of the right to be married, violating the fundamental due

process and equal protection rights of lesbian and gay spouses.

Defendant wrongly attempts to recast the right to marry asserted here as a “novel” right

to marry a person of the same sex. Loving v. Virginia, 388 U.S. 1 (1967), establishes that a state

violates its residents’ right to marry if it refuses recognition to their marriages based on

unjustified disagreement with a person’s choice of spouse, no matter how steeped in history and

tradition that disagreement is. In this respect, Loving is but one in a long line of cases

establishing that courts define fundamental rights by the nature of the liberty sought, not the

identity of the person invoking it. And this point is underscored, not undermined, by

Washington v. Glucksberg, which exhorts courts to rely on “guideposts for responsible

decisionmaking.” 521 U.S. 702, 720 (1997).

Marriage is an enduring relationship carrying tremendous legal, financial, cultural, and

personal significance for any couple who enters into it. A married couple can expect to have

myriad interactions with governments, private parties, and one another over the course of the

marriage, and even after the death of one spouse. Throughout these interactions, a person’s

status as a present or former spouse remains critical. In recognition of the monumental

importance of this enduring status, the settled rule applied for centuries throughout our nation

has been to accord universal recognition across state lines to a marriage valid where celebrated,

even if the marriage could not be legally celebrated in the forum jurisdiction. This universal rule

of interstate marriage recognition, while cast as a comity rather than a constitutional principle, is

an essential point in the constellation of protections accorded the institution of marriage. As the

Supreme Court understood in ruling that Virginia’s ban on recognition of the Lovings’ out-of-


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state interracial marriage violated due process, Loving, 388 U.S. at 12, the recognition by one

government of a marital status obtained in another is “implicit in the concept of ordered liberty,”

Glucksberg, 521 U.S. at 721 (internal quotations and citations omitted).

A person’s right to carry his or her marriage and marital status wherever the person goes

in this nation accords spouses and their children the dignity of a legally respected and universally

understood relationship. It ensures predictability and stability for the spouses, their children,

employers, and others with whom the couple interacts. This right reflects the intent and

expectations of couples who have legally married. It also reflects the reality that the state of

celebration has bestowed on the couple the enduring status of being “married” under its laws.

Under the traditional place-of-celebration standard, any couple that has entered into a valid

marriage can count on being respected as married by the federal and state governments,

regardless of where the couple may live or relocate.

Although the states’ longstanding, uniform place-of-celebration rule has commonly

included an articulated exception for marriages contrary to the strong public policy of the state,

in practice, this exception has rarely applied to void a marriage valid where entered. Our

nation’s history and tradition of extensive state recognition of marriages entered elsewhere, even

if the marriages could not have been legally obtained in the forum state, reflects the depth of the

liberty interest we all share in having our marriages universally respected.

Furthermore, neither the Full Faith and Credit Clause nor Section 2 of the Defense of

Marriage Act (“DOMA”), 28 U.S.C. § 1738C, insulates Louisiana’s marriage recognition bans

from due process challenge.


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ARGUMENT

I. The Fundamental Right To Marry Applies To Same-Sex Spouses.

This Court can decide this case without reaching the fundamental right to marry itself

and the protection it affords to same-sex couples. Nonetheless, Louisiana’s marriage recognition

bans strike at the heart of the fundamental right to marry, purporting to erase Plaintiffs’

marriages.

In case after case, the Supreme Court has reaffirmed not only the right to enter into the

institution of marriage, but also an aspect of that right which makes it most cherished and

meaningful, the right to marry the one you love. The Court has made clear that freedom of

choice of whom to marry is a critical component of that right. These cases demonstrate the

Constitution’s respect for our autonomy to make the personal decisions at stake here – decisions

about with whom a person will build a life and a family. Moreover, “the Supreme Court has

consistently adhered to the principle that a fundamental right, once recognized, properly belongs

to everyone.” Henry, 2014 U.S. Dist. LEXIS 51211, at *29. Fundamental rights are thus

defined by the nature of the liberty sought, not by who seeks to exercise the liberty.

The right to marry has long been recognized as fundamental, protected under the due

process guarantee, because deciding whether and whom to marry is exactly the kind of personal

matter about which government should have little say. Webster v. Reproductive Health Servs.,

492 U.S. 490, 564-65 (1989) (Stevens, J., concurring in part and dissenting in part) (“freedom of

personal choice in matters of marriage and family life is one of the liberties protected by the Due

Process Clause of the Fourteenth Amendment” (emphasis added)); Zablocki v. Redhail, 434 U.S.

374, 387 (1978) (finding burden on right to marry unconstitutional because it infringed “freedom

of choice in an area in which we have held such freedom to be fundamental” (emphasis added));

Moore v. East Cleveland, 431 U.S. 494, 499 (1977). Indeed, “[t]he freedom to marry has long


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been recognized as one of the vital personal rights essential to the orderly pursuit of happiness

by free men.” Loving, 388 U.S. at 12 (citation omitted).

Because the right to make personal decisions central to marriage would have little

meaning if the government dictated one’s marriage partner, courts have placed special emphasis

on protecting one’s free choice of spouse. “[T]he regulation of constitutionally protected

decisions, such as where a person shall reside or whom he or she shall marry, must be predicated

on legitimate state concerns other than disagreement with the choice the individual has made.”

Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (emphasis added); see also Roberts v. United

States Jaycees, 468 U.S. 609, 620 (1984). In keeping with the right to autonomy in deciding

whether and whom to marry, Louisiana imposes very few restrictions on who can marry.5

The scope of a fundamental right is defined by the attributes of the right itself, and not

the identity of the people who seek to exercise it or who have been excluded from doing so in the

past. The Supreme Court has adhered to the principle that a fundamental right, once recognized,

properly belongs to everyone – regardless of whether a particular claimant can point to a

historical tradition supporting the claimant’s ability to exercise that right. For example, in

Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982), the Supreme Court held that an individual

involuntarily committed to a custodial facility because of a disability retained liberty interests,

including the right to freedom from bodily restraint. The Court thus departed from the

longstanding tradition in which people with serious disabilities were viewed as not sharing such

substantive due process rights and were routinely subjected to bodily restraints. See also

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (liberty interest in controlling the decision whether

5 Louisiana permits persons to marry anyone who is not an ascendant or descendant, nor

closer than the fourth degree, so long as both are unmarried. See La. Civ. Code arts. 88 and

90.


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or not to have children, previously recognized for married persons in Griswold, extended equally

to unmarried persons).

Specifically in the context of the fundamental right to marry, the Supreme Court has

rejected attempts to reframe the right narrowly so as to include only those previously

acknowledged to enjoy that liberty. Thus, the fundamental right to marry could no more be a

right to “same-sex marriage” than the right enforced in Loving was to “interracial marriage,” 388

U.S. 1; or in Turner v. Safley to “prisoner marriage,” 482 U.S. 78 (1987). And, indeed, neither

interracial marriages nor marriages involving inmates had any longstanding support in our

nation’s traditions. See Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992)

(“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt

correct in finding it to be an aspect of liberty protected against state interference by the

substantive component of the Due Process Clause in Loving . . . .”); Virginia L. Hardwick,

Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60

N.Y.U. L. Rev. 275, 277-79 (1985) (right to marry as traditionally understood did not extend to

prisoners).6

The argument that same-sex couples seek a “new” right rather than the same right

exercised by others makes the identical mistake of Bowers v. Hardwick, 478 U.S. 186 (1986),

corrected in Lawrence, 539 U.S. 558. In a challenge by a gay man to Georgia’s sodomy statute,

Bowers recast the right at stake, shared by all, to consensual intimacy with the person of one’s

choice, to a claimed “fundamental right” of “homosexuals to engage in sodomy.” Id. at 566-67

6 The right to marry traditionally did not include a right to remarriage after divorce, but that

also changed. See Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (violation of due

process to impose fees on indigent as condition to seek divorce, the only way to be free from

“prohibition against remarriage”). Likewise, after Zablocki, 434 U.S. 374, the right to marry

could not be withheld based on a parent’s unwillingness or inability to support children from

a prior relationship.


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(quoting Bowers, 478 U.S. at 190). Significantly, Lawrence overruled Bowers, holding that

Bowers’s constricted framing “fail[ed] to appreciate the extent of the liberty at stake.”

Lawrence, 539 U.S. at 567.

Defendants’ attempt to limit the fundamental right to marry at issue here to the right to

marry a person of the same sex finds no support in, and indeed is undermined by, Glucksberg,

521 U.S. 702. Glucksberg does not support constricting a long-honored fundamental right to

deny it to those historically excluded from the freedom to exercise it. Glucksberg focused on

liberty interests shared by all individuals, not just those in the majority, and found that the liberty

interest advanced for assistance with suicide was not sufficiently grounded in history to

constitute a fundamental right. It is entirely different, and contrary to constitutional standards, to

define a fundamental right so narrowly as to exclude a group of individuals from sharing it.

Turner, which addressed whether marriage between a prison inmate and an un-

incarcerated person qualifies as a “constitutionally protected marital relationship” despite

differences from “traditional” marriages, demonstrates this. Turner, 482 U.S. at 96. Rather than

dismiss the claim in that case because the union would lack physical companionship, sexual

intimacy, and shared short-term goals, the Court unanimously found that many of the “incidents

of marriage, like the religious and personal aspects of the marriage commitment, are unaffected”

by incarceration and “are sufficient to form a constitutionally protected marital relationship in

the prison context.” Id. Turner thus definitively established that the fundamental right to marry

does not vanish merely because the state points to an attribute that differs from prevailing

notions of “traditional” marriage.7

7 Another way of framing this issue is that the exercise urged by Glucksberg in refining the

asserted right must involve legally relevant limitations. See, e.g., U.S. Citizens Association

v. Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (rejecting plaintiffs’ assertion that the


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The history of marriage belies Defendant’s argument that marriage, as a fundamental

right, is understood only in static terms. For example, marriage laws have undergone substantial

changes in past generations to end subordination of married women and race-based entry

requirements. Marriage laws, through court decisions and legislation, have undergone profound

changes over time and are virtually unrecognizable from the way they operated a century ago.

See generally Nancy F. Cott, Public Vows: A History of Marriage and the Nation (2000).

And yet, couples continue to come together, join their lives, and form new families, and

marriage continues to support and stabilize them. The Supreme Court confirmed in Windsor that

the due process guarantee protects the rights of same-sex couples to the essential dignity,

security, and tangible legal and financial protections that marriage offers. See 133 S. Ct. at

2694-97.

II. Louisiana’s Refusal To Recognize Existing Marriages Of Same-Sex Couples Entered Out

Of State Violates Constitutionally Protected Fundamental Marriage Rights.

The constitutional due process right “not to be deprived of one’s already-existing legal

marriage and its attendant benefits and protections” is a deeply-rooted aspect of the due process

protections long accorded to “existing marital, family, and intimate relationships.” Obergefell v.

Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013)8; see also Glucksberg, 521 U.S. at 720.

Affordable Care Act’s individual mandate “implicate[s] the fundamental liberty right . . . to

refuse unwanted medical care,” and instead recognizing the plaintiffs’ fiscally-focused

request as “protection of economic rights through substantive due process”). Here,

Defendant can offer nothing to justify characterizing the right at issue as a new “right to

same-sex marriage,” except that overwhelming discrimination prevented lesbian and gay

couples from laying claim to their right to marry until recent years. Louisiana’s asserted

justifications for differential treatment, proceeding cautiously and preserving the tradition of

“man-woman marriage,” merely presuppose rather than justify the legitimacy of the

historical limitation in the first place.

8 See also Henry, 2014 U.S. Dist. LEXIS 51211, at *29-30; De Leon v. Perry, No. SA-13-

CA-00982-OLG, 2014 U.S. Dist. LEXIS 26236, at *62 (W.D. Tex. Feb. 26, 2014) (noting


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The long line of decisions recognizing the significance of, and protections accorded, marital

relationships would be meaningless if states could unilaterally refuse to recognize the marriages,

once entered, of disfavored groups, thereby depriving these spouses of their constitutionally-

protected liberty.

As the Supreme Court noted in Glucksberg, our “[n]ation’s history, legal traditions, and

practices” provide guideposts to discern the contours of constitutionally-protected fundamental

liberties. 521 U.S. at 721; see also Lawrence, 539 U.S. at 571-72 (“[O]ur laws and traditions in

the past half century are of most relevance here.”). The Due Process Clause protects rights

“implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they

were sacrificed.” Glucksberg, 521 U.S. at 720-21 (internal quotations and citation omitted).

Throughout our nation’s “history, legal traditions, and practices,” marriages, once entered, have

been cloaked with a wide swath of protections. These range from rights in matters of sexual

intimacy and reproduction, Griswold, 381 U.S. 479; to marital presumptions protecting the legal

rights of both spouses as parents from intrusions even by a child’s genetic parent, Michael H. v.

Gerald D., 491 U.S. 110, 124 (1989); to access to “government benefits (e.g. Social Security

benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less

tangible benefits.” Turner, 482 U.S. at 96. See also Zablocki, 434 U.S. at 397 n.1 (1978)

(Powell, J., concurring) (“[T]here is a sphere of privacy or autonomy surrounding an existing

marital relationship into which the State may not lightly intrude . . .” (emphasis added)).

Windsor’s holding that “out-of-state marriage recognition . . . was a right protected under the

Constitution,” and concluding likelihood of success that plaintiffs will demonstrate Texas

lacked even rational basis for withholding recognition to same-sex couples’ marriages, in

violation of due process); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 U.S. Dist. LEXIS

17457, at *22 (W.D. Ky. Feb. 12, 2014) (finding reasoning in Windsor “about the legitimacy

of laws excluding recognition of same-sex marriages [] instructive,” and concluding that

Kentucky laws denying recognition of valid out-of-state marriages of same-sex couples are

unconstitutional).


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Notably, the Supreme Court has made emphatically clear that couples have fundamental

vested rights to have their marriages accorded legal recognition and protection not just in the

jurisdiction where entered, but also across state lines. In Loving, the Supreme Court struck down

not only Virginia’s law prohibiting interracial marriages within the state, but also its statutes

denying recognition to and criminally punishing such marriages entered outside the state. 388

U.S. at 4, 12. It did so in a case involving a couple already married, who had celebrated their

nuptials in the District of Columbia and then been prosecuted for marrying out of state on return

to their Virginia home. Id. at 2-3. Moreover, the couple had purposely evaded their domicile

state’s law in order to enter into a marriage expressly prohibited and denied recognition there.

Significantly, the Court held that Virginia’s statutory scheme, including its penalties on out-of-

state marriages and voiding of marriages obtained elsewhere, “deprive[d] the Lovings of liberty

without due process of law in violation of the Due Process Clause of the Fourteenth

Amendment.” Id. at 12.

The expectation that one’s marriage, once entered, will be respected throughout the land

is indisputably deeply rooted in “[o]ur Nation’s history, legal traditions, and practices.”

Glucksberg, 521 U.S. at 721. It is so elemental as to be “implicit in the concept of ordered

liberty.” Id. Historically, certainty that a marital status once obtained will be universally

recognized has been understood to be of fundamental importance both to the individual and to

society more broadly: “for the peace of the world, for the prosperity of its respective

communities, for the well-being of families, for virtue in social life, for good morals, for

religion, for everything held dear by the race of man in common, it is necessary there should be

one universal rule whereby to determine whether parties are to be regarded as married or not.” 1

Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation § 856, at 369


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(1891). As one federal court put it 65 years ago, the “policy of the civilized world [] is to sustain

marriages, not to upset them.” Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn.

1949).

Accordingly, interstate recognition of marriage has been a defining and essential feature

of American law, enshrined in common law and legislation as a pillar of domestic relations

jurisprudence. The longstanding, universal rule of marriage recognition dictates that a marriage

valid where celebrated is valid everywhere. See, e.g., Joseph Story, Commentaries on the

Conflict of Laws § 113, at 187 (8th ed. 1883) (“The general principle certainly is . . . that . . .

marriage is decided by the law of the place where it is celebrated.”); Fletcher W. Battershall, The

Law of Domestic Relations in the State of New York 7-8 (1910) (describing “the universal

practice of civilized nations” that the “permission or prohibition of particular marriages, of right

belongs to the country where the marriage is celebrated”).

Enforcement of this universal rule has long served “public policy, common morality, and

the comity of nations.” James Schouler, A Treatise on the Law of Domestic Relations 47 (2d ed.

1874). To this day, the place-of-celebration rule advances critical functions in a nation where a

married couple may live in, move through, and interact with multiple state sovereigns whose

marriage laws may vary. See Williams v. North Carolina, 317 U.S. 287, 299 (1942) (the

prospect of being married in one state and unmarried in another is one of “the most perplexing

and distressing complication[s] in the domestic relations of . . . citizens.” (internal quotations and

citation omitted));9 In re Lenherr Estate, 314 A.2d 255, 258 (Pa. 1974) (“In an age of

9 Williams, requiring North Carolina to give full faith and credit to a Nevada divorce decree

in conflict with North Carolina public policy, emphasized the crucial reasons a single state’s

laws must dictate an ongoing status of such personal significance. See 317 U.S. at 300-01.

The Supreme Court in Williams recognized the importance to the couple of a single clear

answer as to their marital status that would apply both in Nevada and North Carolina, and


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widespread travel and ease of mobility, it would create inordinate confusion and defy the

reasonable expectations of citizens whose marriage is valid in one state to hold that marriage

invalid elsewhere.”).

The rule of recognition protects from the serious harm, disruption, and instability that

results if those who are legally married cannot rely upon their marital status. Under the rule, the

couple can plan a future together in which their family’s legal status will remain intact and

permanent, regardless of the local government with which they may interact. It also dissuades

married couples from disavowing their own obligations to each other and to third parties. A

couple knits their lives together through marriage, making promises of support and care “for

better or for worse.” Griswold, 381 U.S. at 486. The place-of-celebration principle ensures that

married spouses cannot repudiate their marital status and their obligations based on where they

are located. It prevents such “perverse results” as allowing a person who is legally married in

one state to be treated as single and enter into a new marriage with a second spouse in another

state. Joanna Grossman, Resurrecting Comity: Revising the Problem of Non-Uniform Marriage

Laws, 84 Or. L. Rev. 433, 472 (2005). This venerable rule “confirms the parties’ expectations, it

provides stability in an area where stability (because of children and property) is very important,

and it avoids the potentially hideous problems that would arise if the legality of a marriage

varied from state to state.” William M. Richman & William L. Reynolds, Understanding

Conflict of Laws § 119[c] (3d ed. 2002); see also Joseph William Singer, Same Sex Marriage,

Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 4-6 (2005)

(summarizing interests underlying place-of-celebration rule).

throughout the nation. The guarantee of due process likewise prohibits subjecting spouses

to the discriminatory refusal of some states to honor their lawfully obtained marital statuses.


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This principle is so strong that it has commonly been applied by domicile states to

validate marriages even when couples purposely left the home state to evade its marriage

prohibition and marry in a more favorable jurisdiction. These couples nevertheless returned

home entitled to recognition of their marriages. “Amid the confusion of state nuptial policies,

the courts constructed a series of rules that sanctioned the evasion of most statutory controls on

matrimony…. [J]udges gave their blessing to couples who shopped for a forum that would

accept their match.” Michael Grossberg, Governing the Hearth: Law and the Family in

Nineteenth-Century America 295-96 (1985).

To be sure, there is a stated exception to the place-of-celebration rule where the out-of-

state marriage would violate strong public policies of the domicile state. Yet in practice, the

public policy exception has been infrequently invoked to invalidate a marriage valid where

entered. “Instead, courts repeatedly indicate that they have the discretion to use such a public

policy exception but then validate the out-of-state marriage following the general rule in favor of

recognition.” Barbara J. Cox, Same-Sex Marriage and the Public Policy Exception in Choice-of-

Law: Does It Really Exist?, 16 Quinnipiac L. Rev. 61, 66 (1996). Although cases invalidating

out-of-state marriages exist, by widespread practice in this country, “[courts] have been quite

reluctant to use the exception and quite liberal in recognizing marriages celebrated in other

states.” Id. at 68. “The mere fact that a marriage is absolutely null when contracted in Louisiana

does not mean that such a marriage validly performed elsewhere is automatically invalid as

violative of a strong public policy.” Ghassemi v. Ghassemi, 998 So. 2d 731, 743 (La. Ct. App.

2008). 10

10

Louisiana’s Supreme Court did decline to validate a Mississippi common law marriage,

the status of which it questioned initially under Mississippi’s law, after finding the marriage

was contracted in bad faith. Brinson v. Brinson, 233 La. 417, 96 So. 2d 653 (1957).


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Indeed, invalidation has generally been reserved for marriages that violate such strong

principles of state public policy that the parties to the marriage are subject to criminal

prosecution. See, e.g., Rhodes v. McAfee, 457 S.W.2d 522, 523-24 (Tenn. 1970) (out-of-state

marriage between ex-stepfather and stepdaughter was void where such marriage could be

prosecuted as felony in Tennessee); State v. Bell, 66 Tenn. 9 (1872) (refusing to recognize out-

of-state interracial marriage, then criminalized in Tennessee, as defense to violation of

Tennessee fornication law).

The bans at issue in this case are analogous to the ignoble state bans on recognition of

interracial marriages, struck down in 1967 in Loving. State anti-miscegenation laws were the

other historically noteworthy national departure from the prevailing place-of-celebration

standard and the constitutional due process principles it advances. “Only in those states with

anti-miscegenation statutes can one find consistent and repeated use of public policy exceptions

to refuse to recognize otherwise valid out-of-state marriages. Once the Supreme Court outlawed

such refusals as unconstitutional, the public policy exception fell into disuse.”11

Cox, 16

Quinnipiac L. Rev. at 67 (footnotes omitted). Indeed, until marriage for same-sex couples

entered the national stage, the “public policy” exception had grown nearly “obsolete.” Singer, 1

Stan. J. C.R. & C.L. at 40; see also Andrew Koppelman, Symposium, Interstate Recognition of

Same-Sex Marriages and Civil Unions: A Handbook for Judges, 153 U. Pa. L. Rev. 2143, 2148

(2005) (public policy exception had become “archaic”).

Thus in historical and contemporary times, our nation has followed a universal standard

of honoring marriages wherever entered, even when the marriage was contrary to the domicile

11

Notwithstanding bans on recognition of interracial marriages, the force of the principle of

universal recognition led some state courts nonetheless to accord recognition to such

marriages entered out of state. See, e.g., Miller v. Lucks, 36 So. 2d 140 (Miss. 1948).


14-31037.1257

18

state’s public policy and express law. This legal tradition has nurtured and protected validly-

entered marriages, consistent with the constitutional protections due to the “enduring” and

“intimate” status of marriage. Louisiana’s marriage recognition bans, categorically withholding

recognition to one class of marriages, dramatically break from this tradition, with only our

nation’s unconstitutional legacy of interracial marriage bans for precedent. They represent

“[d]iscriminations of an unusual character,” departing from Louisiana’s – and the nation’s –

“history and tradition” of affording legal respect to marriages validly entered in other

jurisdictions. Windsor, 133 S. Ct. at 2692 (citation omitted); see also Lawrence, 539 U.S. at

568-73 (relying on historical lack of enforcement of sodomy bans and absence of laws singling

out same-sex couples for punishment, as well as growing obsolescence of bans on sexual

intimacy, as guideposts in finding state sodomy prohibitions unconstitutional). 12

III. Neither The Full Faith And Credit Clause Nor Section 2 Of DOMA Excuses Louisiana's

Violation Of Plaintiffs’ Due Process Rights.

Contrary to Defendants’ contentions, neither the Full Faith and Credit Clause nor Section

2 of DOMA, promulgated under that Clause, is a defense to Louisiana’s denial of recognition to

married same-sex couples. See Defendants’ Memorandum at 8-9.

The Full Faith and Credit Clause does not authorize Congress to enact discriminatory

provisions violating independent constitutional rights. “The power the Constitution grants it also

restrains. And though Congress has great authority to design laws to fit its own conception of

sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth

12

Louisiana’s bans also infringe on other related fundamental liberty interests in autonomy

over “personal decisions relating to . . . family relationships,” Lawrence, 539 U.S. at 573;

see also Santosky v. Kramer, 455 U.S. 745, 753 (1982), as well as parenting rights, by

precluding same-sex married couples with children from securing legal recognition of their

parent-child relationships through established legal mechanisms available to married

parents, see Henry, 2014 U.S. Dist. LEXIS 51211, at *30-31.


14-31037.1258

19

Amendment.” Windsor, 133 S. Ct. at 2695. The Supreme Court has long maintained that “[i]f

there be any conflict between” constitutional provisions, “the one[s] found in the amendments

must control, under the well-understood rule that the last expression of the will of the lawmaker

prevails over an earlier one.” Schick v. United States, 195 U.S. 65, 68-69 (1904).

Congress thus could no more have used its powers under the Full Faith and Credit Clause

to insulate the marriage recognition ban in Loving from due process and equal protection

requirements than it can insulate these marriage recognition bans through Section 2 of

DOMA. “Congress has no affirmative power to authorize the States to violate the Fourteenth

Amendment and is implicitly prohibited from passing legislation that purports to validate any

such violation.” Saenz v. Roe, 526 U.S. 489, 508 (1999); see also Graham v. Richardson, 403

U.S. 365, 382 (1971) (“Congress does not have the power to authorize the individual States to

violate the Equal Protection Clause.”); De Leon, 2014 U.S. Dist. LEXIS 26236, at *64-65

(rejecting claim that Section 2 of DOMA permits Texas to refuse to recognize out-of-state

marriages between persons of the same sex).

Neither the Full Faith and Credit Clause nor Section 2 of DOMA justifies the denial of

married same-sex spouses’ fundamental right to recognition of their marriages.

IV. Louisiana’s Marriage Recognition Bans Are Subject To Strict Scrutiny.

The marriage recognition bans cannot survive any level of scrutiny and so violate the

guarantee of due process, however in that the rights infringed are fundamental marriage rights,

strict scrutiny should be applied to determine whether the prohibition on recognition is

“necessary to promote a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993)

(law restricting fundamental rights must be “narrowly tailored to serve a compelling state

interest”).


14-31037.1259

20

CONCLUSION

This court should find unconstitutional Louisiana’s bans on recognition of marriages

validly entered in another jurisdiction, and permanently enjoin their enforcement.

Dated: May 12, 2014


/s/ Justin P. Harrison

Justin P. Harrison (La Bar No. 33575)

Legal Director

ACLU Foundation of Louisiana

P.O. Box 56157

New Orleans, Louisiana 70156

Tel. (504) 522-0628


Attorney for Amici Curiae


14-31037.1260

21


I, Justin P. Harrison, hereby certify that on May 12, 2014, the foregoing document was

filed with the Clerk of Court using the CM/ECF system, which will automatically send a copy to

the following:

Richard Gerard Perque

Law Office of Richard G. Perque, LLC

700 Camp St.

New Orleans, LA 70130

504-681-2003

[email protected]

Scott J Spivey, Esq

A Professional Law Corporation

815 Dauphine Street, Suite D


504-684-4904

[email protected]

Attorneys for Plaintiffs

Stuart Kyle Duncan

Louisiana Department of Justice

P. O. Box 94005

Baton Rouge, LA 70804-9005

202-714-9492

[email protected]

Attorney for Defendants

Dated: May 12, 2014

/s/ Justin P. Harrison

Justin P. Harrison (La Bar No. 33575)


14-31037.1261




Plaintiffs

v.


Defendants

CIVIL ACTION

NO. 13-5090

SECTION F(5)

JUDGE MARTIN L.C.

FELDMAN MAGISTRATE

MICHAEL NORTH

REF: ALL CASES

BRIEF OF AMICUS CURIAE MARRIAGE LAW FOUNDATION

Ben E. Clayton

La. State Bar Assn. No. 17512

Clayton Law Firm, LLC, Suite “D”

200 Commercial Square Road

Slidell, LA 70461

985-863-3065 (phone)

985-863-7707 (fax)

[email protected]

Attorney for Amicus Curiae May 12, 2014



14-31037.1262

ii

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

INTEREST OF AMICUS CURIAE ............................................................................... 1

ARGUMENT .................................................................................................................. 1

I. This Court Should Not Create “A Federal Intrusion on State Power” and

“Disrupt the Federal Balance” by Reading Into the Constitution a Mandate to

Redefine Marriage. ........................................................................................................ 1

II. Protecting Federalism is a Compelling Interest that Justifies Non-Interference

by the Federal Courts with the State’s Sovereign Authority to Regulate Marriages. 4

A. Federalism Promotes the Self-Determination of the Citizens of the States. ........ 5

B. Federalism Promotes Interstate Pluralism with Its Associated Benefits. ........... 8

CONCLUSION ............................................................................................................. 11


14-31037.1263

iii


Cases

Alden v. Maine, 527 U.S. 706, 758 (1999) ..................................................................... 4

Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) ........................................... 5

Bond v. United States, 131 S.Ct. 2355, 2364 (2011) ................................................ 4, 7

Chandler v. Florida, 449 US 560, 582 (1981) ............................................................. 10

District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52, 73

note 4 (2009) ............................................................................................................... 2

Elk Grove Unified School District v. Newdow, 542 U.S. 1, 12 (2004) ......................... 2

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 75 (1938) ....................................................... 5

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) .......................................................... 1, 5

Haddock v. Haddock, 201 U. S. 562, 575 (1906) ........................................................... 3

In re Winship, 397 U.S. 358, 385 (1970) ....................................................................... 6

Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................ 4

Miller v. California, 413 U.S. 15, 30 (1973) ................................................................ 11

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2577

(2012) .......................................................................................................................... 2

New State Ice Co. v. Liebmann, 285 US 262, 311 (1932) ............................................. 9

Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384 (1930) ..................................... 3

Oregon v. Ice, 555 U.S. 160, 171 (2009) ........................................................................ 9

San Antonio School District v. Rodriguez, 411 U.S. 1, 50 (1973) ................................ 9

Schuette v. BAMN, 572 U.S. __ (2014) ..................................................................... 7, 8

Shelby Co. v. Holder 133 S. Ct 2612, 2623 (2013) ........................................................ 5

Turner v. Safley, 482 U.S. 78 (1987) ............................................................................. 4

U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) ................................... 4

United States v. Comstock, 560 U.S. 1951, 1967 (2010) .............................................. 2

United States v. Lopez, 514 U.S. 549, 576 (1995) .................................................... 6, 9

United States v. Windsor, 133 S. Ct. 2675, 2692 (2013) .................................. 3, 4, 6, 7

Zablocki v Redhail, 434 U.S. 374 (1978) ....................................................................... 4

Other Authorities

JAMES MCLELLAN, LIBERTY, ORDER, AND JUSTICE 316 (3d ed. 2000) ......................... 10

James Wilson Replies to Findley, Dec. 1, 1787, in 1 DEBATES ON THE CONSTITUTION

820 (Bernard Bailyn ed., 1993) .................................................................................. 2

Jeffrey L. Rensberger, Interstate Pluralism: The Role of Federalism in the Same-Sex Marriage Debate 2008 BYU L. REV. 1703 .................................................... 9, 10

John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery 90 CAL. L. REV. 485, 510 (2002) ....................... 10

ROBERT F. NAGEL, THE IMPLOSION OF AMERICAN FEDERALISM 32 (2001) ..................... 5

THE FEDERALIST No. 45, at 241 (George W. Carey & James McClellan, eds. 2001) ... 2


14-31037.1264

1

INTEREST OF AMICUS CURIAE

In scholarship and advocacy, the Marriage Law Foundation and its officers

have consistently sought to explain and defend the nearly universal and time-tested

understanding of marriage as an institution uniting a man and a woman as

husband and wife. Extensive research and publication have allowed for firm

conclusions about the meaning and nature of marriage and about the appropriate

setting for resolution of disputes about the law of marriage. This brief addresses

this latter point and explains why allowing normal political processes in the states

to decide this issue is the appropriate constitutional response to a claim that the

federal courts should mandate a redefinition of marriage.

ARGUMENT

I. This Court Should Not Create “A Federal Intrusion on State Power” and

“Disrupt the Federal Balance” by Reading Into the Constitution a

Mandate to Redefine Marriage.

As the U.S. Supreme Court has explained, “our Constitution establishes a

system of dual sovereignty between the States and the Federal Government.”

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). The constitutional system of

federalism rests on two conceptual pillars. First is that the powers of the national

government are “delegated” rather than inherent powers. Second is that the powers

of the States are “reserved” powers. As James Madison explained: “The powers

delegated by the proposed constitution to the federal government, are few and

defined. Those which are to remain in the state governments, are numerous and


14-31037.1265

2

indefinite.” THE FEDERALIST No. 45, at 241 (George W. Carey & James McClellan,

eds. 2001). This system is founded on the understanding that “the people are the

source of authority [and] the consequence is, that they . . . can distribute one portion

of power, to the more contracted circle, called state governments: they can also

furnish another proportion to the government of the United States.” James Wilson

Replies to Findley, Dec. 1, 1787, in 1 DEBATES ON THE CONSTITUTION 820 (Bernard

Bailyn ed., 1993). “In our federal system, the National Government possesses only

limited powers; the States and the people retain the remainder.” National

Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2577 (2012).

Under our federal system, “the powers reserved to the States consist of the

whole, undefined residuum of power remaining after taking account of powers

granted to the National Government.” United States v. Comstock, 560 U.S. 1951,

1967 (2010) (Kennedy, J., concurring).

For this court to rule that the United States Constitution mandates that the

State redefine marriage would unnecessarily federalize a question that is

undoubtedly within the “residuum” of power reserved to the states. As the Supreme

Court has noted: “One of the principal areas in which this Court has customarily

declined to intervene is the real of domestic relations.” Elk Grove Unified School

District v. Newdow, 542 U.S. 1, 12 (2004). To intervene in state regulation of

marriage would “thrust the Federal Judiciary into an area previously left to state

courts and legislatures.” District Attorney’s Office for the Third Judicial District v.

Osborne, 557 U.S. 52, 73 note 4 (2009). It would create “a federal intrusion on state


14-31037.1266

3

power” and “disrupt[] the federal balance.” United States v. Windsor, 133 S. Ct.

2675, 2692 (2013). All without any clear textual or precedential direction to do so.

As the Supreme Court forcefully reiterated last term: “By history and

tradition the definition and regulation of marriage . . . has been treated as being

within the authority and realm of the separate States.” Id. at 2689-2690. The Court

noted “[t]he recognition of civil marriages is central to state domestic relations law

applicable to its residents and citizens.” Id. at 2691. Further, “[t]he definition of

marriage is the foundation of the State’s broader authority to regulate the subject of

domestic relations with respect to the ‘[p]rotection of offspring, property interests,

and the enforcement of marital responsibilities.’” Id.

It has been so since the beginning: “The significance of state responsibilities

for the definition and regulation of marriage dates to the Nation’s beginning; for

‘when the Constitution was adopted the common understanding was that the

domestic relations of husband and wife and parent and child were matters reserved

to the States.’” Id. at 2680-2681 (quoting Ohio ex rel. Popovici v. Agler, 280 U. S.

379, 383–384 (1930)). The Court explained that, “‘the states, at the time of the

adoption of the Constitution, possessed full power over the subject of marriage and

divorce . . . [and] the Constitution delegated no authority to the Government of the

United States on the subject of marriage and divorce.’” Id. at 2691 (quoting Haddock

v. Haddock, 201 U. S. 562, 575 (1906)).

“Consistent with this allocation of authority, the Federal Government,

through our history, has deferred to state law policy decisions with respect to


14-31037.1267

4

domestic relations.” Id. Thus, it is a “long established precept that the incidents,

benefits, and obligations of marriage are uniform for all married couples within

each State, though they may vary, subject to constitutional guarantees1, from one

State to the next.” Id. at 2692.

There is no reason for this court to depart from this “long established

precept” by holding that the federal courts now have the authority to superintend

the domestic relations laws of the states.

II. Protecting Federalism is a Compelling Interest that Justifies Non-

Interference by the Federal Courts with the State’s Sovereign Authority to

Regulate Marriages.

Our federal system is premised on the “counterintuitive insight, that ‘freedom

is enhanced by the creation of two governments, not one.’” Bond v. United States,

131 S.Ct. 2355, 2364 (2011) (quoting Alden v. Maine, 527 U.S. 706, 758

(1999)(Kennedy, J., concurring)). As Justice Kennedy has noted, “[t]he Framers

split the atom of sovereignty,” U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779,

838 (1995) (Kennedy, J., concurring), and “concluded that allocation of powers

between the National Government and the States enhances freedom, first by

protecting the integrity of the governments themselves, and second by protecting

the people, from whom all governmental powers are derived.” Bond, 131 S. Ct. at

2364.

1 The constitutional guarantees referenced are not applicable here since all of the cases that have

constrained the state’s regulation of marriage have involved laws that prevented individuals

otherwise qualified for marriage from marrying, and have not gone to the essentials of what

marriage means as the claim in this case does. See Loving v. Virginia, 388 U.S. 1 (1967);

Zablocki v Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987).


14-31037.1268

5

Federalism “‘preserves the integrity, dignity and residual sovereignty of the

States,’” and “secures to citizens the liberties that derive from the diffusion of

sovereign power.” Shelby Co. v. Holder 133 S. Ct 2612, 2623 (2013). This is

important because “[w]ithout some degree of sovereign status, states would not

have the capacity to act as a ‘counterpoise’ to federal power.” ROBERT F. NAGEL, THE

IMPLOSION OF AMERICAN FEDERALISM 32 (2001). That is why the federal structure

“recognizes and preserves the autonomy and independence of the States.” Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 75 (1938). As the Court has explained:

Supervision over either the legislative or the judicial action of the

States is in no case permissible except as to matters by the

Constitution specifically authorized or delegated to the United States.

Any interference with either, except as thus permitted, is an invasion

of the authority of the State and, to that extent, a denial of its

independence. Id. at 79 (quoting Baltimore & O.R. Co. v. Baugh, 149

U.S. 368, 401 (1893) (Field, J., dissenting)) (emphasis added).

This diffusion of powers ensures that citizens may control their own destiny

and that different states may adopt different policies uniquely suited to the desires

and aspirations of the people of those states. As the Supreme Court noted:

This federalist structure of joint sovereigns preserves to the people

numerous advantages. It assures a decentralized government that will

be more sensitive to the diverse needs of a heterogenous society; it

increases opportunity for citizen involvement in democratic processes;

it allows for more innovation and experimentation in government; and

it makes government more responsive by putting the States in

competition for a mobile citizenry. Gregory v. Ashcroft, 501 U.S. 452,

458 (1991).

A. Federalism Promotes the Self-Determination of the Citizens of the States.

This interest in “increase[d] opportunity for citizen involvement in

democratic processes” is particularly important in a case such as this in which the


14-31037.1269

6

court is asked to second-guess a decision arrived at through a process which

involved the citizens in their direct and representative capacities. As Justice Black

said, “the right of self-government that our Constitution preserves is just as

important as any of the specific individual freedoms preserved in the Bill of Rights.”

In re Winship, 397 U.S. 358, 385 (1970) (Black, J., dissenting). As Justice Kennedy

explains, the federalist “theory that two governments accord more liberty than one

requires for its realization two distinct and discernible lines of political

accountability: one between the citizens and the Federal Government; the second

between the citizens and the States.” United States v. Lopez, 514 U.S. 549, 576

(1995) (Kennedy, J., concurring). He continued:

Were the Federal Government to take over the regulation of entire

areas of traditional state concern, areas having nothing to do with the

regulation of commercial activities, the boundaries between the

spheres of federal and state authority would blur and political

responsibility would become illusory. The resultant inability to hold

either branch of the government answerable to the citizens is more

dangerous even than devolving too much authority to the remote

central power. Id. (citations omitted).

The Supreme Court’s recent decision striking down the federal Defense of

Marriage Act, which the Court said “departs from this history and tradition of

reliance on state law to define marriage,” stresses the important value of political

self-determination. United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). In that

case, the Court spoke of the New York legislature’s decision in terms that stressed

the importance of citizen involvement: “After a statewide deliberative process that

enabled its citizens to discuss and weigh arguments for and against same-sex

marriage, New York acted to enlarge the definition of marriage.” Id. at 2689. The


14-31037.1270

7

Court said the decision “reflects . . . the community’s considered perspective” (id. at

2692-2693) and that “New York was responding ‘to the initiative of those who

[sought] a voice in shaping the destiny of their own times.’” Id. at 2692 (quoting

Bond v. United States, 131 S.Ct. 2355, 2359 (2011). The majority could not have

been clearer when it said: “The dynamics of state government in the federal system

are to allow the formation of consensus respecting the way the members of a

discrete community treat each other in their daily contact and constant interaction

with each other.” Id.

This term, the Court has spoken even more emphatically about the

importance of allowing state citizens to set policy on controversial matters. Weeks

ago, a Supreme Court majority upheld a Michigan constitutional amendment

enacted, like the state’s marriage amendment, “[a]fter a statewide debate.” Schuette

v. BAMN, 572 U.S. __ (2014), slip op at 2. Writing for the plurality, Justice Kennedy

made clear that the federal courts “may not disempower the voters from choosing

which path to follow” when “enacting policies as an exercise of democratic self-

government.” Id. at 13. The plurality characterized the voters’ action as

“exercis[ing] their privilege to enact laws as a basic exercise of their democratic

power.” Id. at 15. So, too, with the Amendment challenged in this case. Justice

Kennedy’s words fit well the Michigan Marriage Amendment: “freedom does not

stop with individual rights. Our constitutional system embraces, too, the right of

citizens to debate so they can learn and decide and then, through the political

process, act in concert to try to shape the course of their own times.” Id. at 15-16.


14-31037.1271

8

This is true even though the issue “raises difficult and delicate issues” and

embraces “a difficult subject.” Id. Justice Kennedy rejected the idea “that the

electorate’s power must be limited because the people cannot prudently exercise

that power even after a full debate.” Id. at 16. To accept this idea would have been

“an unprecedented restriction on the exercise of a fundamental right held not just

by one person but by all in common . . . the right to speak and debate and learn and

then, as a matter of political will, to act through a lawful electoral process.” Id. He

concluded: “It is demeaning to the democratic process to presume that the voters are

not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Id. at 17. In his concurrence, Justice Breyer explains “the Constitution foresees the

ballot box, not the courts, as the normal instrument for resolving differences and

debates about the merits” of race-conscious programs. Id. at 3 (Breyer, J,

concurring). This passage too is instructive in this case where the Constitution

foresees the ballot box, not the courts, as the normal instrument for resolving

differences and debates about the merits of preserving marriage as the union of a

husband and wife or redefining it to include same-sex couples.

Clearly, state decisions reflecting the consensus of citizens about a matter as

fundamental as the definition of marriage—the foundation of the family which is, in

turn, the most basic unit of society—ought to be entitled to a high degree of respect.

B. Federalism Promotes Interstate Pluralism with Its Associated Benefits.

Beyond the importance of safeguarding local self-government, federalism also

advances interstate pluralism. “Interstate pluralism is the feature of our federal


14-31037.1272

9

system that reflects the ability of each state to establish itself as a distinct

community. It entails the ability to make and enforce choices on foundational

matters such as fundamental ordering of . . . family relations” and “seeks to protect

each state’s ability to create and enforce these fundamental orderings and thereby

define its society.” Jeffrey L. Rensberger, Interstate Pluralism: The Role of

Federalism in the Same-Sex Marriage Debate 2008 BYU L. REV. 1703, 1728.

Interstate pluralism allows states to experiment with various social and legal

policies free from interference and to reflect the unique preference and attributes of

the state.

As the U.S. Supreme Court has “long recognized,” the States have an

important role “as laboratories for devising solutions to difficult legal problems.”

Oregon v. Ice, 555 U.S. 160, 171 (2009). For instance, Justice Brandeis argued: “It is

one of the happy incidents of the federal system that a single courageous State may,

if its citizens choose, serve as a laboratory; and try novel social and economic

experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann,

285 US 262, 311 (1932) (Brandeis. J., dissenting). Justice Kennedy explained “the

theory and utility of federalism are revealed” when “States may perform their role

as laboratories for experimentation to devise various solutions where the best

solution is far from clear.” United States v. Lopez, 514 U.S. 549, 581 (1995).

“Pluralism also affords some opportunity for experimentation, innovation,

and a healthy competition.” San Antonio School District v. Rodriguez, 411 U.S. 1, 50

(1973). It is common in many areas of the law for particular States to be viewed


14-31037.1273

10

favorably by residents of other States because of the State’s approach to a variety of

legal issues such as taxation and business regulations as well as domestic relations.

Since “interstate pluralism allows for state-to-state differentiation, it encourages

individuals to relocate to take advantage of a particular social policy, be it low

taxes, high employment, a high level of social services, or personal safety.”

Rensberger at 1739.

The Supreme Court has said it “should not diminish that [experimentation]

role absent impelling reason to do so.” Oregon v. Ice, 555 U.S. at 171. This is in

keeping with an earlier statement: “We are not empowered by the Constitution to

oversee or harness state procedural experimentation; only when the state action

infringes fundamental guarantees are we authorized to intervene.” Chandler v.

Florida, 449 US 560, 582 (1981).

Additionally, as Professor James McLellan notes, “federalism protects

minority rights—the rights of communities or whole regions to maintain their

customs, their diversity and individuality, their self-rule.” JAMES MCLELLAN,

LIBERTY, ORDER, AND JUSTICE 316 (3d ed. 2000). Federalism protects the “different

preferences and needs” of different States. John O. McGinnis, Reviving Tocqueville’s

America: The Rehnquist Court’s Jurisprudence of Social Discovery 90 CAL. L. REV.

485, 510 (2002). Professor Rensberger explains that it is an empirical fact that “in

culture, conditions, and social values, the states are fundamentally different from

one another.” Rensberger at 1792. There is no reason these differences may not

appropriately be reflected in State laws.


14-31037.1274

11

In the context of obscenity regulation “the [Supreme] Court explicitly allowed

for diversity within the United States of what is obscene.” Id. at 1732. In the case

referred to, the Court said “our Nation is simply too big and too diverse for this

Court to reasonably expect that such standards could be articulated for all 50 States

in a single formulation, even assuming the prerequisite consensus exists.” Miller v.

California, 413 U.S. 15, 30 (1973). The Court also said: “People in different States

vary in their tastes and attitudes, and this diversity is not to be strangled by the

absolutism of imposed uniformity.” Id. at 33.

Obviously, strangling the diversity of state marriage policies with uniformity

imposed by the federal courts is an even more substantial threat to the values

advanced by federalism.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully urge this Court to rule

in favor of the constitutionality of Louisiana’s marriage laws.


/s/ Ben E. Clayton_______________ Ben E. Clayton

May 12, 2014

200 Commercial Square Road

Suite D

Slidell, Louisiana 70461

(985) 863-3065

(985) 863-7707

[email protected]

Attorney for Amicus Curiae


14-31037.1275

12


I hereby certify that on May 12, 2014, the foregoing brief was filed with the

Clerk of Court using the Court’s CM/ECF system. I further certify that counsel of

record for all parties in this case who are registered CM/ECF users will be served by

the CM/ECF system.

/s/ Ben E. Clayton_______________ Ben E. Clayton

May 12, 2014


14-31037.1276




Defendants

CIVIL ACTION



REF: ALL CASES

BRIEF OF AMICI CURIAE PROFESSORS ALAN J. HAWKINS AND JASON S. CARROLL IN SUPPORT

OF DEFENDANTS __________________________________________

Daniel "Danny" R. Atkinson, Jr.(LA 18103) Perry, Atkinson, Balhoff, Mengis & Burns, LLC 2141 Quail Run Dr. Baton Rouge, LA 70808 Office (225) 767-7730, Direct (225) 767-8864, Cell (225) 938-5557, Fax (225) 767-7967 Email: [email protected] Counsel of Record for Amici Hawkins and Carroll


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INTEREST OF AMICI CURIAE1

Alan J. Hawkins and Jason S. Carroll are professors of Family Life at Brigham Young

University. Professor Hawkins earned his Ph.D. in Human Development and Family Studies

from Penn State University. Professor Carroll earned his Ph.D. in Family Social Science from

the University of Minnesota. They have studied extensively and published widely on

fatherhood, marital formation and dissolution, interventions to strengthen marriages, and how

marriage as a social institution affects human behavior. Their expertise in these fields will assist

the Court’s consideration of the issues presented by this case.

SUMMARY OF THE ARGUMENT

There is no dispute among social scientists that social institutions profoundly affect

human behavior. They provide human relationships with meaning, norms, and patterns, and in

so doing encourage and guide conduct. Nobel Laureate Douglass North has described

institutions as the “humanly devised constraints that shape human interaction.” DOUGLASS

NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE 3 (1990). That

is their function. And when the definitions and norms that constitute a social institution change,

the behaviors and interactions that the institution shapes also change.

Marriage is society’s most enduring and essential institution. From ancient times to the

present, it has shaped and guided sexual, domestic, and familial relations between men, women,

and their children. As with any institution, changing the basic definition and social

understanding of marriage—such as by abandoning its gendered definition—will change the

1 No party’s counsel authored this brief in whole or in part or contributed money that was intended to fund preparing or submitting the brief, and no one other than amicus or his counsel contributed money that was intended to fund preparing or submitting this brief. The views expressed herein are those of the amici and not necessarily those of Brigham Young University.


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behavior of men and women in marriage and even affect whether they enter marriage in the first

place. Whether deemed good or bad, redefining marriage away from its historically gendered

purposes will have significant consequences.

We know this, as discussed below, not only as a matter of sound theory, logic, and

common sense but from experience with other changes to marriage and marriage-related

expectations. Specifically, the advent of no-fault divorce changed the legal and social

presumption of permanence in marriage. That change had profound consequences. While

affording adults greater autonomy and facilitating an easier end to dangerous or unhealthy

relationships, it also resulted in increased numbers of divorces from low-conflict marriages,

created a tangible sense of fragility for all marriages, and left more children to be raised without

one of their parents, typically the father, with attendant adverse consequences.

Although it is far too early to know exactly how redefining marriage to include same-sex

couples will change marriage, Professor Hawkins and Professor Carroll demonstrate that such a

significant change will likely further weaken heterosexual men’s connection to marriage and

their children. This, in turn, will likely increase the risk that more children will be raised without

the manifest benefits of having their fathers married to their mothers and involved day to day in

their lives. These risks justify States in cautiously hesitating before redefining marriage in non-

gendered terms.

Today, ninety-two percent (92%) of the nations on earth do not permit or recognize

same-sex marriage. Nor do two-thirds of American states. Clearly, defining marriage as the

union of man and woman only is a deeply imbedded cross-social, cross-cultural, cross-national

global experience and expectations.


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ARGUMENT

I. Marriage Is a Social Institution With Practical Benefits that Depend on Its Social, Linguistic, and Legal Meaning; Altering that Meaning Will Necessarily Alter Those Benefits.

A. Marriage is a social institution that exists to encourage important human behaviors for vital public ends.

Social institutions exist primarily to guide and channel human behavior in ways that

benefit society. Preeminent social anthropologist A. R. Radcliffe-Brown described social

institutions as a means for society to order “the interactions of persons in social relationships.”

A.R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY 10-11 (1952). In

social institutions, “the conduct of persons in their interactions with others is controlled by

norms, rules, or patterns.” Id. As a consequence, “a person [in a social institution] knows that

he [or she] is expected to behave according to these norms and that the other person should do

the same.” Id.

Through such rules, norms, and expectations—some legal, others cultural—social

institutions become constituted by a web of public meaning. See Victor Nee & Paul Ingram,

Embeddedness and Beyond: Institutions, Exchange, and Social Structure, in THE NEW

INSTITUTIONALISM IN SOCIOLOGY 19 (Mary C. Brinton & Victor Nee eds., 1998) (“An institution

is a web of interrelated norms—formal and informal—governing social relationships.”). Social

institutions, and the language we use to describe them, in large measure define relationships and

how we understand them and act within them.

“[L]anguage—or more precisely, normative vocabulary—is one of the key cultural resources supporting and regulating any [social] institution. Nothing is more essential to the integrity and strength of an institution than a common set of understandings, a shared body of opinions, about the meaning and purpose of the institution. And, conversely, nothing is more damaging to the integrity of an institution than an attack on this common set of understandings with the consequent fracturing of meaning.”


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Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage As a Social Institution: A Reply

to Andrew Koppelman, 2 U. ST. THOMAS L. J. 33, 52-53 (2004) (quoting Barbara Dafoe

Whitehead, The Experts’ Story of Marriage 7 (Council on Families in Am. Working Paper No.

WP14, 1992)).

Marriage is a vital institution—few dispute that. See, e.g., WILLIAM J. DOHERTY ET AL.,

INSTITUTE FOR AM. VALUES, WHY MARRIAGE MATTERS: TWENTY-ONE CONCLUSIONS FROM THE

SOCIAL SCIENCES 8-9 (2002) [hereinafter DOHERTY, WHY MARRIAGE] (“At least since the

beginning of recorded history, in all the flourishing varieties of human cultures documented by

anthropologists, marriage has been a universal human institution.”). Courts have long

recognized the institutional nature of marriage. See, e.g., Williams v. North Carolina, 317 U.S.

287, 303 (1942) (“[T]he marriage relation [is] an institution more basic in our civilization than

any other.”).

Thus, although serving many private ends, marriage’s institutional nature means that it is

not merely a private arrangement. It exists to shape and guide human behavior to serve public

and social purposes. And those public purposes have always centered on uniting a man and a

woman to order their sexual behavior and maximize the welfare of their children:

Marriage exists in virtually every known human society. . . . As a virtually universal human idea, marriage is about the reproduction of children, families, and society. . . . [M]arriage across societies is a publicly acknowledged and supported sexual union which creates kinship obligations and sharing of resources between men, women, and the children that their sexual union may produce.

DOHERTY, WHY MARRIAGE, supra, at 8-9. That has been the social, linguistic, and legal

meaning of marriage from ancient times and continues in contemporary society. See, e.g., JAMES

Q. WILSON, THE MARRIAGE PROBLEM: HOW OUR CULTURE HAS WEAKENED OUR FAMILIES 24

(2002) (“[A] lasting, socially enforced obligation between man and woman that authorizes

sexual congress and the supervision of children” exists and has existed “[i]n every community


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and for as far back in time as we can probe”); G. ROBINA QUALE, A HISTORY OF MARRIAGE

SYSTEMS 2 (1988) (“Marriage, as the socially recognized linking of a specific man to a specific

woman and her offspring, can be found in all societies.”); SAMUEL JOHNSON, A DICTIONARY OF

THE ENGLISH LANGUAGE (1755) (marriage is the “act of uniting a man and woman for life”);

NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) (same).

Indeed, until very recently, “it was an accepted truth for almost everyone who ever lived,

in any society in which marriage existed, that there could be marriages only between participants

of different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). And until a few years ago,

the law universally reflected and reinforced that historical, cultural, and linguistic understanding.

B. Because marriage is a social institution with a public purpose and not only a vehicle for accommodating private arrangements, altering its basic definition will necessarily alter the social benefits it produces.

Abandoning marriage’s gendered definition and redefining it in non-gendered terms

would fundamentally alter its meaning and many of its the public purposes. That necessarily

follows from the very nature of marriage as a social institution. As Professor Daniel Cere of

McGill University has explained: “Definitions matter. They constitute and define authoritative

public knowledge. . . Changing the public meaning of an institution changes the institution.

[The change] inevitably shapes the social understandings, the practices, the goods, and the social

selves sustained and supported by that institution.” Monte Neil Stewart, Judicial Redefinition of

Marriage, 21 CAN. J. FAM. L. 11, 76-77 (2004) (footnotes omitted) (quoting Daniel Cere, The

Conjugal Tradition in Postmodernity: The Closure of Public Discourse?, Paper Presented at Re-

visioning Marriage in Postmodern Culture Conference, 4-5 (Dec. 2003)).

The current debate over marriage is frequently portrayed as a decision about whether to

“expand” or “extend” the boundaries of marriage to include same-sex couples. This argument

rests on the assumption that the basic nature of marriage will remain largely unchanged by


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granting marriage status to same-sex partnerships and that all this policy change would do is

absorb same-sex partnerships within the boundaries of marriage and extend the benefits of

marriage to a wider segment of society. Indeed, the very term “same-sex marriage” implies that

same-sex couples in long-term committed relationships are already a type of marriage that

should be appropriately recognized and labeled as such. But this understanding is flawed in that

it fails to recognize how recognizing same-sex partnerships as marriages would signify a

fundamental change in how marriage is collectively understood and the primary social purposes

for which it exists.

If marriage is redefined to mean the union of two people without regard to gender, it will

lose its inherent focus on children. Such a change, to be sure, would afford a few more children

in same-sex unions the opportunity to grow up in what the law would deem a married household.

But the law would then teach that marriage is “essentially an emotional union” that has no

inherent connection “to procreation and family life.” ROBERT GEORGE ET AL., WHAT IS

MARRIAGE? MAN AND WOMAN: A DEFENSE 7 (2012); see United States v. Windsor, 133 S. Ct.

2675, 2715, 2718 (2013) (Alito, J., dissenting) (citing GEORGE ET AL., supra). In a formal

statement, seventy prominent academics from all relevant disciplines expressed “deep[ ]

concerns about the institutional consequences of same-sex marriage for marriage itself,”

concluding that “[s]ame-sex marriage would further undercut the idea that procreation is

intrinsically connected to marriage” and “undermine the idea that children need both a mother

and a father, further weakening the societal norm that men should take responsibility for the

children they beget.” WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN

PRINCIPLES 18-19 (2006). Defining marriage as merely the union of two persons, in short, would

“distill” marriage down to its pure close relationship essence.” Cere, supra, at 2.


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Courts and jurists have likewise acknowledged the profound change in social meaning

that would follow a change in marriage’s basic definition:

We cannot escape the reality that the shared societal meaning of marriage—passed down through the common law into our statutory law—has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin.

Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006); see also Goodridge v. Dep’t of Pub. Health, 798

N.E.2d 941, 981 (Mass. 2003) (Sosman, J., dissenting) (“[I]t is surely pertinent to the inquiry to

recognize that this proffered change affects not just a load-bearing wall of our social structure

but the very cornerstone of that structure.”).

II. Recent Legal Changes to the Institution of Marriage and to Marriage-Related Expectations Confirm that Altering the Meaning of Marriage Would Likely Have Unintended and Negative Consequences for Children.

The conclusion that redefining marriage will materially alter the mix of social benefits

marriage provides is supported not only by sound socio-institutional theory, logic, and common

sense but by experience with other changes to marriage and marriage-related expectations. Of

course, no one can know the precise, long-term consequences of redefining marriage to include

same-sex couples. It is simply too soon and the ways it may affect marriage too complex to be

understood without considerably more time and extensive conceptual and empirical inquiry.

Justice Alito recently made this point:

Past changes in the understanding of marriage . . . have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.

Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting); see also id. at 2715 n.5 (“As sociologists have

documented, it sometimes takes decades to document the effects of social changes—like the


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sharp rise in divorce rates following the advent of no-fault divorce—on children and society.”

(citing JUDITH S. WALLERSTEIN, ET AL., THE UNEXPECTED LEGACY OF DIVORCE: THE 25 YEAR

LANDMARK STUDY (2000)).

But cautionary lessons can be drawn from recent changes to marriage law and marriage-

related expectations. Perhaps the most relevant lesson comes from an analysis of the impact of

no-fault divorce. No-fault divorce had unintended consequences that weakened marriage and

fatherhood, and thus harmed children, id. at 297; ALLEN M. PARKMAN, GOOD INTENTIONS GONE

AWRY: NO-FAULT DIVORCE AND THE AMERICAN FAMILY 91-150 (2000), and is a likely template

for the effects of same-sex marriage.

There are many important reasons for no-fault divorce laws. The fault-based systems of

the past undoubtedly created many problems and at times serious injustices. Among its benefits,

no-fault divorce affords adults greater autonomy, WALLERSTEIN, ET AL., supra, at 297, and

facilitates the end of dangerous, Betsey Stevenson & Justin Wolfers, Bargaining in the Shadow

of the Law: Divorce Law and Family Distress, 121 Q.J. ECON. 267, 267 (2006), unhealthy, or

necrotic unions.

Reformers were optimistic that no-fault divorce would have no detrimental effects on

children. In fact, as Barbara Dafoe Whitehead has chronicled, many early “experts” provided

extensive and intricate rationales for how divorce would benefit children—divorce “for the sake

of the children.” BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE: RETHINKING OUR

COMMITMENTS TO MARRIAGE AND FAMILY 81 (1996); see also id. at 84-90 (discussing

predictions of how divorce would benefit children). Empirically, however, this early optimism

has proven short-sighted. See Donald Moir, A New Class of Disadvantaged Children, in IT

TAKES TWO: THE FAMILY IN LAW AND FINANCE 63, 67-68 (Douglas W. Allen & John Richards


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eds., 1999). Reformers may have reasoned that children’s exposure to harmful parental conflict

would decrease and that their parents would readily find greater happiness that would improve

parenting. But divorce often does not end parental conflict, E. MAVIS HETHERINGTON & JOHN

KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED 138 (2002), and the evidence

suggests that parenting quality declines with divorce, id. at 126-140. Also, most divorces come

from low-conflict marriages. PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK:

GROWING UP IN AN ERA OF FAMILY UPHEAVAL 220 (1997); Paul R. Amato & Bryndl Hohmann-

Marriott, A Comparison of High- and Low-Distress Marriages That End in Divorce, 69 J.

MARRIAGE & FAM. 261 (2007). And divorce does not lead reliably to greater personal

happiness. LINDA J. WAITE ET AL., INSTITUTE FOR AM. VALUES, DOES DIVORCE MAKE PEOPLE

HAPPY? FINDINGS FROM A STUDY OF UNHAPPY MARRIAGES 4 (2002).

So as scholars acquired sufficient data to adequately assess the empirical realities of

divorce, the evidence revealed decidedly less favorable outcomes, Paul R. Amato, The Impact of

Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next

Generation, 15 FUTURE OF CHILDREN, Fall 2005, at 75, 75. It is true that the children of chronic,

high-conflict marriages actually do better when that relationship ends, AMATO & BOOTH, supra,

at 220, furthering societal interests in children’s well-being. But this is not the typical divorce

scenario; as mentioned above, most divorces come from low-conflict marriages, and these

children do worse when their parents divorce compared to children whose parents are able to

sustain the marriage. Id. And most unhappy marriages become happy again if given time, Linda

J. Waite et al., Marital Happiness and Marital Stability: Consequences for Psychological Well-

Being, 38 SOC. SCI. RES. 201, 201 (2009) [hereinafter Waite, Marital Happiness], redounding to

the further benefit of their children.


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Accordingly, the potential salutary benefits of no-fault divorce for one subset of children

and parents have been greatly diminished by the harms it imposes on another and likely much

larger subset of children and parents. A prolonged period of greater instability is a primary

contributor to these harms. For most children (and adults), marital dissolution begins a

prolonged process of residential and relational instability, as families move and new romantic

interests move in and out of the household and many children lose contact with their fathers.

ANDREW J. CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE AND THE FAMILY IN

AMERICA TODAY 16-24 (2009) [hereinafter CHERLIN, MARRIAGE-GO-ROUND]. While there is a

long list of caveats, and while most children are resilient, the fact remains that, on average,

children whose parents divorce are at significantly greater risk for a host of economic,

behavioral, educational, social, and psychological problems. Amato, supra, at 75.

Moreover, the impact of no-fault divorce must also be assessed at the institutional level,

not just the personal level. Scholars have debated the specific effects of no-fault divorce on

subsequent divorce and marriage rates. It certainly contributed to a short-term increase in

divorce in the 1970s, but evidence suggests it has also contributed modestly to increased divorce

rates above its long-term historical trends. PARKMAN, supra, at 91 (summarizing research).

Psychologically, high rates of divorce have contributed greatly to a climate of marital fragility,

which may be influencing current declines in our overall marriage rate as well as further

increases in divorce rates. Judith Wallerstein concluded from her 25-year study of the effects of

divorce that changes to family life, including the high incidence of divorce, have “created new

kinds of families in which relationships are fragile and often unreliable.” WALLERSTEIN ET AL.,

supra, at 297. Nearly half of all marriages now end in divorce, Matthew D. Bramlett & William

D. Mosher, CDC, First Marriage Dissolution, Divorce and Remarriage: United States,


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ADVANCE DATA NO. 323, at 5 (2001), making marriage seem like a risky proposition for all.

This discourages some from entering into marriage at all, WALLERSTEIN, ET AL, supra, at xvi, and

keeps the specter of divorce ever-present during times of marital discontent. Research also has

found a contagion effect for divorce, such that a divorce in one’s social circle increases one’s

own risk of divorce. Rose McDermott et al., Breaking Up Is Hard to Do, Unless Everyone Else

Is Doing It Too: Social Network Effects on Divorce in a Longitudinal Sample, 92 SOC. FORCES

491, 491 (2013).

The advent of no-fault divorce (with accompanying shorter waiting periods) did not just

make it procedurally easier to exit an unsatisfying relationship. It changed the legal and social

presumption of permanence in marriage. Intentionally or not, no-fault divorce diminished the

institutional and social expectation of marital permanence. It changed the public meaning of

marriage from a legally binding life-long union that was expected to weather the inevitable

disappointments and challenges of romantic unions (“for better or for worse”), to a union whose

duration depended on the subjective choice of one spouse—“from as long as we both shall live”

has been replaced by “as long as we both shall love.” Before no-fault divorce, our laws

reinforced the ideal that divorce should not be a ready option, although it may be a necessity.

After no-fault divorce, our laws teach that divorce is always a ready option, even if not a

necessity.

The legal change of no-fault divorce has to some extent tipped the scales of marriage in

favor of adult emotional interests and personal choice over its institutional, child-centered

elements. It weakened permanence as a fundamental public meaning of marriage and

contributed to a generational shift in attitudes and behaviors within individual marriages in ways

that harmed overall child interests. Permanence was not just an element of the legal definition of


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marriage; it was a primary mechanism by which marriage produced its benefits for children (and

adults). The expectation of permanence provides a strong incentive for parents to work through

their problems to achieve a satisfying relationship; it encourages parents to prioritize their

children’s long-term needs above their own short-term desires; it helps to harness two adults in

the rearing of their children. Weakening the expectation of permanence in the legal and cultural

understanding of marriage unexpectedly weakened each of these child-centered factors, on

average harming the wellbeing of children.

The no-fault divorce experience serves as a warning, especially with respect to child

welfare. The definition of the institution of marriage—its legal rules and norms and the social

and personal meanings and expectations that flow from them—affects the behavior of all couples

within marriage. And that in turn can have profound effects on the overall wellbeing of children,

even if the immediate rationale of the change is to benefit a specific subset of children and

adults.

III. Redefining Marriage in Non-Gendered Terms Will Likely Harm the Interests of Children by Diminishing the Relevance and Value of Marriage and Fatherhood to Heterosexual Men.

As with early advocates for no-fault divorce, proponents of eliminating the gendered

definition and understanding of marriage confidently predict that such a change will have no

adverse consequences for heterosexual marriages or their children. What could be the harm to

marriage-related interests of allowing same-sex couples to marry? Indeed, for the vast majority

of people, the argument goes, nothing would change: “If you like your marriage, you can keep

your marriage.”

This recalls the optimistic early thinking about no-fault divorce. Yet some humility is in

order. It is unlikely that contemporary thinkers attempting to divine the consequences of another

major change to the legal definition of marriage—the removal of gender as a defining pillar—are


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more gifted at secular prophecy than were thinkers in the early years of the no-fault divorce

revolution. Indeed, in our view, the no-fault divorce revolution provides the clearest precedent

for rational predictions about the effects of redefining marriage in genderless terms.

Just as the innovation of no-fault divorce benefited men and women in irretrievably

broken marriages, same-sex couples may benefit from being able to marry and from the non-

gendered understanding of marriage that such a redefinition would create. And it is reasonable

to assume—although it is hardly a certainty—that some existing children in same-sex couple

households would also benefit from marriage if it brings greater stability to their family. But as

the history of no-fault divorce suggests, there are strong reasons not to fully credit such

predictions. And importantly, one has to look beyond the effects within same-sex families alone

to accurately gauge the full impacts of a de-gendered understanding of marriage.

Benign predictions about the effects of such a redefinition, moreover, are based on the

assumption that legalizing same-sex marriage would not be a significant change in the core

definition of marriage, or that, even if it is, such a change will have little or no adverse

consequences on marriage as an institution and on those who depend on its current definition.

But in fact, the legalization of same-sex marriage would eliminate gender as a definitional pillar

of the social institution of marriage. That would not just expand or extend marriage to another

class of relationships leaving unchanged the basic institution for its traditional members; it would

effect a fundamental change in its meaning. And changing its meaning most likely will change

behavior. To deny this likelihood is intellectually untenable—it is to deny that meaning matters

to social institutions, and that marriage matters as a social institution.

How the new, de-gendered meaning of marriage will change attitudes toward and

behaviors within marriage cannot be known with precision. But based on what is known about


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marriage as an institution and the roles it has long played in society, we can make some highly

reasonable projections. We focus here on one in particular: that stripping marriage of its

gendered meaning will likely diminish the relevance and meaning of marriage and fatherhood to

heterosexual men, weakening their connection to marriage and to the children they father.

A. Traditional, gendered marriage is the most important way heterosexual men create their masculine identities. Marriage forms and channels that masculinity into the service of their children and society. Redefining marriage to include same-sex couples would eliminate gender as a crucial element of marriage and thus undermine marriage’s power to shape and guide masculinity for those beneficial ends.

Far from being a relic of history or a quaint custom that has outgrown its usefulness in

modern society, gender is a crucial component of not only the definition of marriage but of how

marriage produces its benefits for children and society. In fact, it may be more crucial now than

it has ever been because of changes that have occurred in the meaning of marriage over the past

five decades that have dramatically weakened men’s ties to their children and their children’s

mother. Sara McClanahan, Diverging Destinies: How Children Are Faring Under The Second

Demographic Transition, 41 DEMOGRAPHY 607, 607 (2004).

According to eminent family sociologist Steven L. Nock, marriage is a primary means of

shaping men’s identities and behaviors (e.g., sexual, economic, etc.) from self-centered in nature

to child-and family-centered in orientation:

Historically, masculinity has implied three things about a man: he should be the father of his wife’s children, he should be the provider for his wife and children, and he should protect his family. Accordingly, the male who refused to provide for or protect his family was not only a bad husband, he was somehow less of a man. In marriage, men do those things that are culturally accepted as basic elements of adult masculinity. . . . [M]arriage changes men because it is the venue in which adult masculinity is developed and sustained.

STEVEN L. NOCK, MARRIAGE IN MEN’S LIVES 4 (1998). Moreover, Nock argues that, “by calling

for behaviors of a certain type [socially valuable behaviors], the expectations of normative


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marriage also reinforce and maintain [generative] masculine identities. In this sense, normative

marriage is a masculinity template. . . . In their marriages, and by their marriages, men define

and display themselves as masculine.” Id. at 58-59. “When we ask why marriage appears to be

beneficial to men [and women and children], one possible answer is that the institution of

marriage, at least in its traditional form, is a socially approved mechanism for the expression of

[mature] masculinity.” Id. at 59.

Marriage is the most important social mechanism we have to channel young men’s adult

identity into other-oriented behaviors of sacrifice, generosity, and protection for their own

children and even for all children. Marriage is a transformative act, but especially so for men,

because of how it directs men’s adult identity into service to their families and to society

But fatherhood is more socially constructed and more contextually sensitive than

motherhood, according to a landmark report to the U.S. Department of Health and Human

Services, which was later published in a leading peer-reviewed journal. William J. Doherty et

al., Responsible Fathering: An Overview and Conceptual Framework, 60 J. MARRIAGE & FAM.

277 (1998) [hereinafter Doherty, Responsible Fathering]. Fatherhood is more problematic than

motherhood because men’s commitment to and investment in parenting is far more difficult to

achieve. Many of the historical supports that have traditionally preserved men’s involvement in

their children’s lives have been eroding for contemporary families. Historically high rates of

non-marital cohabitation, out-of-wedlock childbirth, and marital divorce, McClanahan, supra,

have dramatically altered the landscape of fathering, leaving unprecedented numbers of children

growing up with uncertain or non-existent relationships with their fathers.

While these demographic trends have changed family life in general, they have been

particularly grim for father-child relationships, which are more sensitive than mother-child


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relationships to contextual forces and supports. Doherty, Responsible Fathering, supra, at 277.

Accordingly, any signal that men’s contributions are not central to children’s well-being

threatens to further decrease the likelihood that they will channel their masculine identities into

responsible fathering. We believe the official de-gendering of marriage sends just such a signal.

A gender-free definition of marriage risks eliminating the achievement of mature, other-centered

masculinity (as opposed to immature, self-centered masculinity) as a primary motivation for

generative fathering.

Thus, the legal recognition of same-sex marriage is not just an extension or expansion of

marriage’s borders to accommodate a new kind of family form; it is a fundamental change to the

meaning of marriage and fatherhood. In our opinion, to legally proclaim that gender is not an

essential component of marriage undermines in a profound, far-reaching, and official way the

very mechanism that creates many of the benefits that marriage produces. If marriage is

redefined as two committed partners regardless of their gender, then marriage’s connection to

men’s role as fathers is necessarily ambiguous. A genderless meaning of marriage puts at risk

the cultural sense that marriage and fatherhood are central to defining men’s identities. It invites,

even demands, new ways of understanding families that make men’s unique contributions to

family life and their children entirely optional. It deepens the destructive, decades-long cultural

trend of questioning the necessity and importance of fathers as nurturers, providers, and

protectors within families, which has weakened father-child bonds and familial ties.

In sum, if men are legally defined as optional to marriage and childrearing, then marriage

will likely struggle to maintain its primacy as a means for men to establish their masculine

identity in ways that serve children best. A gender-free definition of marriage—where gender is

officially irrelevant to its structure and meaning—will likely have less social power to draw


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heterosexual men into marriage and thus less power to serve marriage’s vital child-welfare

purposes. And no doubt these potential effects, like many others, would be felt most keenly and

quickly by the children and families of the most disadvantaged men in our society—men who

already are struggling with a sense that they are of secondary importance within their families

and whose masculinity is already challenged by their tenuous participation in our economic

system. KATHRYN EDIN & TIMOTHY J. NELSON, DOING THE BEST I CAN: FATHERHOOD IN THE

INNER CITY 216-28 (2013).

To be sure, these risks associated with same-sex marriage may be difficult to disentangle

from negative effects from other strong social changes. After all, we believe a de-gendered

understanding of marriage is an additional force in a larger trend that is uncoupling sexuality,

marriage, and parenthood and making men’s connections to children weaker. Thus, it may be

difficult to separate statistically the potential effects of de-gendering marriage from the effects

stemming from powerful forces to which it is related, such as the sexual revolution, the divorce

revolution, and the single-parenting revolution. That these effects are intertwined with the

effects of other powerful forces, however, does not diminish their importance or the harms they

can impose on marriage.

Removing gender from the legal meaning of marriage will deepen the grand social

experiment of the past 50 years of deinstitutionalizing marriage and fatherhood. Andrew

Cherlin, The Deinstitutionalization of American Marriage, 66 J. MARRIAGE FAM. 848, 848

(2004). And we fear its consequences will only add to the problems this change in family life is

producing.

B. Abandoning the gendered definition of marriage, thereby weakening the connection of heterosexual men to marriage and fatherhood, will harm the State’s interests in maximizing the welfare of children.


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We have demonstrated how abandoning the gendered definition of marriage will tend to

further alienate heterosexual men from marriage and fatherhood. Although precise effects

cannot be known with certainty at this early stage, that alienation is likely to harm the State’s

interests in securing the welfare of children—and specifically in maximizing the likelihood that

children will be reared by a father as well as a mother—in at least four concrete and predicable

ways.

1. Fewer and shorter marriages. Redefining marriage in genderless terms will

undermine the State’s interest in encouraging heterosexual fathers to marry the mothers of their

children. If men no longer view marriage as central to defining their adult identities—if they see

themselves as unnecessary to the intrinsic meaning and purpose of marriage and thus view

marriage as unrelated to their sense of maleness—they will be less likely to marry, even when

they become fathers. Marriage, in other words, will simply be less relevant to men and thus less

attractive to them. In an already highly individualistic culture such as ours, men will be more

likely to seek to establish their adult identities through other means, such as career and financial

success, personal pursuits, and leisure activities and non-marital sexual relationships. The

children of such men will be far less likely to be raised by their fathers as well as their mothers,

and as a result will suffer. See KRISTIN ANDERSON MOORE ET AL., CHILD TRENDS, MARRIAGE

FROM A CHILD’S PERSPECTIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN AND WHAT

CAN WE DO ABOUT IT? 6(June2002) http://www.childtrends.org/wp-

content/uploads/2013/03/MarriageRB602.pdf (children born and raised without a married father

and mother suffer increased risks of poor outcomes).


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Redefinition will also undermine the State’s interest in encouraging married heterosexual

fathers to remain married for the benefit of their children despite marital difficulties. “Until the

current generation, the widely held (and now empirically supported) belief that children needed

their fathers was a central tenet in social norms encouraging men to work through marital

troubles with their wives . . . .” Jason S. Carroll & David C. Dollahite, “Who’s My Daddy?”

How the Legalization of Same-Sex Partnerships Would Further the Rise of Ambiguous

Fatherhood in America, in WHAT’S THE HARM?: DOES LEGALIZING SAME-SEX MARRIAGE

REALLY HARM INDIVIDUALS, FAMILIES OR SOCIETY 62 (Lynn D. Wardle ed., 2008). “This retreat

from the ideal may be particularly devastating for [the family involvement and parenting of] men

who, according to research, are more reliant on such social and relationship supports to foster

their healthy involvement in family life and parenting.” Id. As we noted previously, research

studies have found that most divorces come from low-conflict marriages and that the children in

these families do worse when their parents’ divorce compared to children whose parents are able

to sustain the marriage. AMATO & BOOTH, supra, at 220. Also, most unhappy marriages

become happy again if given time, Waite, Marital Happiness, supra, at 201, rebounding to the

further benefit of their children. A gendered definition of marriage and parenting emphasizes that

fathers are important and unique in the lives of their children. This perspective helps men see

that their children are stakeholders in their marriages and discourages divorce. Same-sex

marriage denies that men are essential to marriage and thus that fathers are essential in the lives

of their children, which will increase the likelihood that fewer heterosexual fathers stay married

for the sake of their children.


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2. Less parenting by fathers. Abandoning the gendered definition of marriage will

also diminish the likelihood of men, even married men, being responsible fathers, or being

fathers at all. Indeed, it is likely that redefining marriage

would support a retreat from fatherhood altogether among some American men. One aspect of a self-defined parenting ideology in society is the option of not being a parent at all. If fathering is not a cultural ideal, the potential exists for an increase in men who live outside marriage and parenthood altogether. Given the data on the negative social consequences of a large number of unmarried men (e.g., higher rates of crime and other anti-social behavior), we should resist movement toward a parenting culture that would suggest that men can be viewed as “sperm donors” whose only essential “parenting role” is conception and then women can do it alone, either as single parents or as a lesbian couple. The loss of a cultural ideal for men to become responsible fathers could lead to increased numbers of men and children who live in non-generative contexts.

Carroll & Dollahite, supra, at 62-63. This would harm the State’s interest in encouraging the

optimal mother-father, biological parenting model, resulting in more children being raised

without the benefits of a biological father—or any father at all.

3. More conception outside marriage rather than inside marriage. For similar

reasons, abandoning the gendered definition of marriage would make it more likely that men will

engage in sex outside marriage, and will thus produce comparatively more children who will

likely be raised by their mothers alone. For many men, the current cultural expectation that they

will be active fathers to any children they help conceive serves as a natural deterrent to engaging

in extra-marital sex and thus risking the incursion of such an obligation. By weakening or

removing that cultural expectation—i.e., by making the father’s role optional—redefining

marriage in genderless terms will reduce that deterrent and, therefore, likely increase the relative

number of children conceived and born outside of marriage, with no expectation that the father

will be actively involved in rearing them. In short, redefinition will likely increase the

proportion of fatherless children in two ways: by reducing the number of children born within

marital unions, and by increasing the number born outside of such unions.


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Of course, current increases in non-marital childbirth rates reflect large increases in the

number of cohabiting couples having children, which is increasingly being seen by many as

another culturally viable form of family formation. And, if young mothers and fathers were

actually marrying each other a year or two after the arrival of their first child and remaining

together, non-marital childbirth rates might not be much to worry about. But that is not what’s

happening. Nearly 40 percent of cohabiting twenty-something parents who had a baby between

2000 and 2005 split up by the time their child was five—three times the rate for twenty-

something parents who were married when they had a child. Cohabiting parents were also more

than three times more likely than married parents to move on to another cohabiting or marital

relationship with a new partner if their relationship did break up. KAY HYMOWITZ, ET AL., KNOT

YET: THE BENEFITS AND COSTS OF DELAYED MARRIAGE IN AMERICA (2013), available at

http://twentysomethingmarriage.org/in-brief/. Research paints a sobering picture of the effect

these disruptions have. Children suffer emotionally, academically, and financially when they

experience this type of relationship carousel. See CHERLIN, MARRIAGE-GO-ROUND, supra;

Amato, supra.

4. Less self-sacrificing by fathers. Finally, further alienating men from marriage and

fatherhood by redefining it to make their presence unnecessary would likely diminish self-

sacrificing behavior by men for their wives and children. If, as we show above, a genderless

definition of marriage undermines marriage and fatherhood as a primary vehicle for adult

identity-creation, then men will be less likely to sacrifice their self-interests for the child-centric

interests inherent in traditional male-female marriage and fatherhood. When faced with choices

regarding career, housing and neighborhood decisions, long-term saving, child educational

needs, personal recreational activities, activities with friends, sexual fidelity to spouse, alcohol


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23

and drug use, and a host of other decisions affecting the welfare of their children, fathers will be

more likely to choose their own selfish interests over those of their wives and children. As child

interests take a back seat, the welfare of children is likely to suffer in a host of ways.

CONCLUSION

The social impact of this court mandating legalization of same-sex marriage in Louisiana

would be radical. Two-thirds of all states and 92% of all nations today reject same-sex marriage.

Within the past fifteen years, voters in thirty-one states have adopted amendments to their state

constitutions barring same-sex marriage; while same-sex marriage has become is legal only in

the past decade and currently in only sixteen (soon 17) states.2 To redefine marriage to authorize

same-sex marriages would profoundly alter the meaning of the institution which the Supreme

Court long has protected.

Redefining marriage to include same-sex couples is not merely a matter of extending to

such couples the benefits of marriage. Social institutions are constituted by legal and social

meanings that shape and guide human behavior. Marriage, our foremost social institution, has

profound connections with child welfare and adult male identity. Marriage cannot simply be

redefined in non-gendered terms without significant consequences for children.

Naturally, the risks associated with legalizing same-sex marriage may prove difficult to

statistically disentangle from the negative effects of other strong social changes. In our view, a

de-gendered understanding of marriage is an additional force in a larger trend that is uncoupling

sexuality, marriage, and parenthood and making men’s connections to children weaker. Thus, it

may be difficult to statistically separate the potential effects of de-gendering marriage from

2 See Lynn D. Wardle, Legal Status of Same-sex Marriage and Unions in the USA and World (25 March 2014), available at http://www.law2.byu.edu/files/marriage_family/Status%20of%20SSM-CUs%20World%20140325.pdf (seen 8 May 2014).


14-31037.1299

24

effects stemming from powerful forces to which it is related: the sexual revolution, the divorce

revolution, and the single-parenting revolution. But the fact that de-gendering effects are

intertwined with the effects of other powerful forces does not diminish their importance.

Much as no-fault divorce changed the presumed permanence of marriage, creating

adverse consequences for children, abandoning the gendered definition of marriage would

further destabilize marriage as a key definer and shaper of mature male identity. This, in turn, is

likely to further alienate men from marriage, resulting in harm to marriage’s vital role in

advancing child welfare—and particularly in increasing the likelihood that many more children,

will not be reared by a father as well as a mother. While the precise effects of redefining

marriage are not yet known with certainty, these risks are real and cannot be ignored.

For these reasons, we urge the Court to reject plaintiffs’ arguments advocating the

judicial redefinition of marriage.


Daniel “Danny” R. Atkinson, Jr. Daniel "Danny" R. Atkinson, Jr. (LA 18103) Perry, Atkinson, Balhoff, Mengis & Burns, LLC 2141 Quail Run Dr. Baton Rouge, LA 70808 P.O. Drawer 83260 Baton Rouge, LA 70884-3260 Office (225) 767-7730 Direct (225) 767-8864 Cell (225) 938-5557 Fax (225) 767-7967 Email: [email protected] Counsel of Record for Amici Hawkins and Carroll


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I hereby certify that on May 9, 2014, I electronically filed the foregoing Amicus Curiae brief with the Clerk of the Court for the United States District Court, Eastern District of Louisiana by using the CM/ECF system, and that counsel for all parties in this case are registered CM/ECF users and will be served by CM/ECF system.

/s/ Daniel “Danny” R. Atkinson, Jr. Daniel “Danny” R. Atkinson. Jr. Attorney for Amici Hawkins and Carroll


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1


CASES Goodridge v. Dep’t of Pub. Health

798 N.E.2d 941 (Mass. 2003) .................................................................................................... 8 Hernandez v. Robles

855 N.E.2d 1 (N.Y. 2006) .......................................................................................................... 6 Lewis v. Harris

908 A.2d 196 (N.J. 2006) ........................................................................................................... 8 United States v. Windsor

133 S. Ct. 2675 (2013) ............................................................................................................ 7,8 Williams v. North Carolina

317 U.S. 287 (1942) ................................................................................................................... 5 OTHER AUTHORITIES A.R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY (1952) ......................................................................................................................................... 4 ALLEN M. PARKMAN, GOOD INTENTIONS GONE AWRY: NO-FAULT DIVORCE AND THE AMERICAN

FAMILY (2000) ....................................................................................................................... 9,11 Andrew Cherlin, The Deinstitutionalization of American Marriage, 66 J. MARRIAGE FAM. 848

(2004) ....................................................................................................................................... 18 ANDREW J. CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE AND THE FAMILY IN

AMERICA TODAY (2009) ...................................................................................................... 11,22 Barara Dafoe Whitehead, THE DIVORCE CULTURE: RETHINKING OUR COMMITMENTS TO

MARRIAGE AND FAMILY (1996).................................................................................................. 9 Barbara Dafoe Whitehead, The Experts’ Story of Marriage 7 (A Council on Families in Am.

Working Paper for the Marriage in Am. Symposium, Working Paper No. WP14, 1992) ......... 5


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Betsey Stevenson & Justin Wolfers, Bargaining in the Shadow of the Law: Divorce Law and Family Distress, 121 Q.J. ECON. 267 (2006) ............................................................................. 8

Daniel Cere, The Conjugal Tradition in Postmodernity: The Closure of Public Discourse?, Paper

Presented at Re-visioning Marriage in Postmodern Culture Conference, 4-5 (Dec. 2003) ....... 5 Donald Moir, A New Class of Disadvantaged Children, in IT TAKES TWO: THE FAMILY IN LAW

AND FINANCE 63, 67-68 (Douglas W. Allen & John Richards eds., 1999) ................................ 9 DOUGLASS NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE

(1990) ......................................................................................................................................... 2 E. MAVIS HETHERINGTON & JOHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED

(2002) ....................................................................................................................................... 10 G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS (1988) .................................................... 5 JAMES Q. WILSON, THE MARRIAGE PROBLEM: HOW OUR CULTURE HAS WEAKENED OUR

FAMILIES (2002) ......................................................................................................................... 5 Jason S. Carroll & David C. Dollahite, “Who’s My Daddy?” How the Legalization of Same-Sex

Partnerships Would Further the Rise of Ambiguous Fatherhood in America, in WHAT’S THE

HARM?: DOES LEGALIZING SAME-SEX MARRIAGE REALLY HARM INDIVIDUALS, FAMILIES OR

SOCIETY (Lynn D. Wardle ed., 2008). ............................................................................................... 20,21 JUDITH S. WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF DIVORCE: THE 25 YEAR

LANDMARK STUDY (2000) ................................................................................................ 8, 9, 11 KATHRYN EDIN & TIMOTHY J. NELSON, DOING THE BEST I CAN: FATHERHOOD IN THE INNER CITY

(2013) ....................................................................................................................................... 18 KAY HYMOWITZ, ET AL, KNOT YET: THE BENEFITS AND COSTS OF DELAYED MARRIAGE IN

AMERICA (2013) ....................................................................................................................... 21 KRISTIN ANDERSON MOORE ET AL., CHILD TRENDS, MARRIAGE FROM A CHILD’S

PERSPECTIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN AND WHAT CAN WE DO

ABOUT IT? (June 2002)............................................................................................................. 19


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3

LINDA J. WAITE ET AL., INSTITUTE FOR AM. VALUES, DOES DIVORCE MAKE PEOPLE HAPPY?

FINDINGS FROM A STUDY OF UNHAPPY MARRIAGES (2002) ..................................................... 10 Linda J. Waite et al., Marital Happiness and Marital Stability: Consequences for Psychological

Well-Being, 38 SOC. SCI. RES. 201 (2009) .......................................................................... 10,20 Lynn D. Wardle, Legal Status of Same-sex Marriage and Unions in the USA and World (25 March 2014), available at http://www.law2.byu.edu/site/marriage-family/home (seen 8 May 2014)………………………………………………………………………………………….23 Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage As a Social Institution: A Reply

to Andrew Koppelman, 2 U. ST. THOMAS L. J. 33 (2004) .......................................................... 4 Matthew D. Bramlett & William D. Mosher, CDC, First Marriage Dissolution, Divorce and

Remarriage: United States, ADVANCE DATA NO. 323 (2001) ................................................. 11 Monte Neil Stewart, Judicial Redefinition of Marriage

21 CAN. J. FAM. L. 11 (2004) ...................................................................................................... 6 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) ...................... 6 PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY

UPHEAVAL (1997) ................................................................................................................ 10,20 Paul R. Amato & Bryndl Hohmann-Marriott, A Comparison of High- and Low-Distress

Marriages That End in Divorce, 69 J. MARRIAGE & FAM. (2007) ........................................... 10 Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and

Emotional Well-Being of the Next Generation, 15 FUTURE OF CHILDREN, Fall 2005 .... 10,11,22 ROBERT GEORGE ET AL., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE (2012) ................ 7 Rose McDermott et al., Breaking Up Is Hard to Do, Unless Everyone Else Is Doing It Too:

Social Network Effects on Divorce in a Longitudinal Sample, 92 SOC. FORCES 491(2013) .... 11 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755) ....................................... 6 Sara McLanahan, Diverging Destinies: How Children Are Faring Under The Second

Demographic Transition, 41 DEMOGRAPHY 607 (2004) ..................................................... 15,16


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STEVEN L. NOCK, MARRIAGE IN MEN’S LIVES (1998) .................................................................. 15 Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions, Exchange, and Social

Structure, in THE NEW INSTITUTIONALISM IN SOCIOLOGY (Mary C. Brinton & Victor Nee eds., 1998)........................................................................................................................................... 4

William J. Doherty et al., Responsible Fathering: An Overview and Conceptual Framework, 60

J. MARRIAGE & FAM. 277 (1998) ............................................................................................. 16 WILLIAM J. DOHERTY, ET AL., INSTITUTE FOR AM. VALUES, WHY MARRIAGE MATTERS: TWENTY-

ONE CONCLUSIONS FROM THE SOCIAL SCIENCES (2002) ............................................................ 5 WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES (2006) .............. 7


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Plaintiffs

v.


Defendants

CIVIL ACTION


JUDGE MARTIN L.C. FELDMANMAGISTRATE MICHAEL NORTH

REF: ALL CASES

BRIEF OF AMICI CURIAE

J. RANDALL TRAHAN AND KATHERINE SHAW SPAHT

ON BEHALF OF DEFENDANTS

Gregory Scott LaCour (Bar No. 23823)Amanda M. Pendleton (Bar No. 34022)DAVID J. LUKINOVICH, APLC4415 Shores Drive, Suite 200Metairie, Louisiana 70006Telephone: (504) 818-0401Telecopy: (504) 818-0408


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TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5I. The Louisiana Legislature’s decision to enact Louisiana Civil Code art. 3520.B, far from

being a bizarre departure from traditional “conflict of laws” principles, was an effort tocodify those very principles, an effort that represented a reasoned and proportioned responseto a credible threat to those principles posed by then contemporaneous social, political, andjudicial developments outside Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. The “strong public policy” against same-sex marriage on which Louisiana Civil Code article3520.B is premised has its roots in Louisiana’s traditional “civil law” understanding ofmarriage, according to which the procreation and rearing of children are viewed as its naturalconcomitants; same sex-marriage cannot be reconciled with this venerable understanding ofmarriage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


LOUISIANA

CONSTITUTION

Art. 12, § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

LEGISLATION

CIVIL CODE ARTICLES

86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17215 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18238 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Page 2 of 20


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246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9, 10, 113520.A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 83520.B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11, 12, 19

REVISED STATUTES

14:76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 814:78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914:89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

JURISPRUDENCE

Dupre v. Executor of Boulard, 10 La. Ann. 415 (1855) . . . . . . . . . . . . . . . . . . . . 6Ghassemi v. Ghassemi, 998 So.2d 731 (La. App. 1st Cir. 2008) . . . . . . . . . . . . . . 8

Ledoux v. Her Husband, 10 La. Ann. 663 (1855) . . . . . . . . . . . . . . . . . . . . . . . . 16Succession of Gabisso, 119 La. 704, 712 44 So. 438 (1907) . . . . . . . . . . . . . . . . . 6

DOCTRINE

Kenneth Murchison & J. Randall Trahan, WESTERN LEGAL TRADITIONS & SYSTEMS:LOUISIANA IMPACT (rev. ed. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Katherine S. Spaht, State Constitutional Amendments Prohibiting Same-sex Unions:Winning the “Dual Object” Argument, 7 FL. C. L. REV. 339, 361-62 (2005)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Katherine S. Spaht, The Last One Hundred Years: the Incredible Retreat of Law

from the Regulation of Marriage, 63 LA. L. REV. 243 (2003) . . . . . . . . . . 7Katherine S. Spaht, Revolution and Counter-Revolution: the Future of Marriage in

the Law, LOY. L. REV. 1, 47-48 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 17J.-R. Trahan, Impediments to Marriage in Scotland and Louisiana: An Historical-

Comparative Investigation, forming Chapter 7 of MIXED JURISDICTIONS

COMPARED: PRIVATE LAW IN LOUISIANA AND SCOTLAND 173 (2009) . . 7J.-R. Trahan, Glossae on the New Law of Filiation, 67 LA. L. REV. 387 (2007) 17J.-R. Trahan, The Continuing Influence of Le Droit Civil and El Derecho Civil in the

Private Law of Louisiana, 63 La. L. Rev. 1019 (2003) . . . . . . . . . . . . . . 13

OTHER

UNITED STATES

FEDERAL-JURISPRUDENCE

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) . 12

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District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . 12Dred Scott v. Sandford, 60 U.S. 393 (1857) . . . . . . . . . . . . . . . . . . . . . . 12Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12U.S. v. Windsor, 133 S. Ct. 2675, 2689 (2013) . . . . . . . . . . . . . . . . . . . . . 7

OTHER STATES-JURISPRUDENCE

Baehr v. Miike, Civ. No. 91-1394,1996 WL 694235 (Haw. Dist. 1996), aff’dper curiam, 87 Haw.34, 950 P.2d 1234 (Haw. 1997) . . . . . . . . . 10

Baker v. State, 744 A.2d 864 (Vt. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 10Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743

(Alaska Super. Feb. 27, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FRANCE – DOCTRINE

2 Jean Domat, LES LOIS CIVILES DANS LEUR ORDER NATUREL ch. III, secs. I-IV, pp.xiii-xvi (2d ed. 1697) (J.R. Trahan tr., 2014) . . . . . . . . . . . . . . . . . . . . . . 15

J.-E.-M. Portalis, Présentation au Corps Législatif, in 9 RECUEIL COMPLET DES

TRAVAUX PRÉPARATOIRES DU CODE CIVIL 138 (P.A. Fenet ed., 1827) (J.R.Trahan tr., 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Robert Pothier, TRAITÉ DU CONTRAT DE MARIAGE no 5, p. 4, in 5 OEUVRES DE

POTHIER (Dupin ed., nouv. ed. 1825) (J.R. Trahan tr., 2014) . . . . . . . . . 15

SPAIN - LEGISLATION

4 LAS SIETE PARTIDAS pt. 4, intro. & tit. 2, intro. & laws 3 & 4, at 877, 886, & 887(Robert I. Burns, S.J., Burns ed. & Samuel Scott Parsons, tr., 2001) . . . 14

INTEREST OF AMICI CURIAE

Amici curiae, J. Randall Trahan and Katherine Shaw Spaht, are professors of law at

Louisiana State University. Professor Trahan regularly teaches courses in family law, regularly

speaks in a number of “continuing legal education” programs on the subject of family law, and has

written several articles pertaining to various aspects of family law. Professor Emeritus Spaht, during

her lengthy career, regularly taught family law and published extensively on the subject of marriage

and related matters in family law. Her publications include the Louisiana Civil Law Treatise on

Matrimonial Regimes. Professors Spaht and Trahan file this brief in their individual capacities,

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neither of them representing Louisiana State University or its law school. Amici curiae have no

personal interest in the outcome of the pending litigation other than as teachers of and commentators

on the Louisiana law of marriage and as concerned Louisiana citizens.

ARGUMENT

I. The Louisiana Legislature’s decision to enact Louisiana Civil Code art. 3520.B, far

from being a bizarre departure from traditional “conflict of laws” principles, was an

effort to codify those very principles, an effort that represented a reasoned and

proportioned response to a credible threat to those principles posed by then

contemporaneous social, political, and judicial developments outside Louisiana.

A central plank of the plaintiffs’ case is the contention that the enactment of Louisiana Civil

Code Article 3520.B1 cannot be explained except on the theory that its backers were motivated by

some sort of anti-homosexual animus. Evidence in support of this theory, the plaintiffs maintain,

includes what they regard as the seeming singularity of Article 3520.B. Before Article 3520.B was

enacted in 1999, Article 3520, the plaintiffs correctly note, consisted of only one paragraph, that

which is now labeled “A”, the relevant part of which then read (and still reads) as follows: “A

marriage that is valid in the state where contracted . . . shall be treated as a valid marriage unless to

do so would violate a strong public policy of the state whose law is applicable [under other general

conflicts-of-law principles].” By adding Paragraph B to the article, which explicitly prohibits

recognition of foreign same-sex marriages, the Legislature2 – so say the plaintiffs – did something

unprecedented, namely, singled out one specific “strong public policy” of Louisiana from among the

1 Throughout our brief, we will have occasion to cite a number of Louisiana Civil Codearticles. For the sake of convenience, we will hereafter use the abbreviation “LCC art.” or simply“Article” in referring to those articles.

2 Because we will be speaking of the Louisiana Legislature quite a lot in this brief, we will,here and hereafter, use simply the short form expression “Legislature” to refer to it.

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others – that against same-sex marriage – for special treatment.

Though the plaintiffs are correct about the “singularity” of LCC art. 3520.B, they are not

correct about the considerations that motivated its enactment. As we will explain below, through the

enactment of Article 3520.B, the Legislature, far from breaking with traditional conflicts of laws

principles, took pains to “codify” them , doing so in the face of a credible threat to those principles

posed by then contemporaneous social, political, and judicial developments outside Louisiana.

Before presenting the arguments in support of this proposition, we would do well, first of all,

to address several “background” matters. Without a clear understanding of this background, neither

the plaintiffs’ arguments, nor those we will make to rebut them, can be properly assessed.

First, it is beyond all disputing that the “strong public policy” exception to Louisiana’s

general choice-of-law rule of favor matrimonii – the exception now instantiated in LCC art. 3520

– is of ancient vintage. The exception can be traced at least as far back as 19073, when the state

supreme court first recognized it in haec verbae, and perhaps even as far back as 18554, when the

state supreme court undoubtedly applied the principle, though without identifying it.

Second, there can be no doubt that Louisiana has, in fact, long had a “strong public policy”

against same-sex marriage. Can we point to some “old” piece of legislation, judicial decision, even

piece of scholarship that says as much explicitly? No, we cannot. But that is hardly determinative

of the question. One cannot very well expect legislators, judges, or scholars to speak to what is

unthinkable, and up until recently, the very idea of same-sex marriage most assuredly fit that

3 Succession of Gabisso, 119 La. 704, 712, 44 So. 438, 441 (1907).

4 Dupre v. Executor of Boulard, 10 La. Ann. 415, 415 (1855).

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description, not just in Louisiana, but around the world.5 As Professor Spaht has noted in a recent

publication,

[w]hat did not appear at the turn of the century as an incapacity to contract marriagewas a person who is of the same sex. It never would have occurred to the lawmakerto prohibit the marriage of persons of the same sex since marriage, a naturalinstitution by definition and by natural law, could only be contracted by persons ofthe opposite sex. That marriage could be contracted between persons of the same sexwould constitute an oxymoron; therefore, there was simply no need to include anyprohibition of such “marriage.” No other civilization which had recognized theinstitution of marriage had ever permitted the marriage of persons of the same sex.6

One might add to this observation the fact that, from the very beginning of its existence, Louisiana

has criminalized the kind of sexual intercourse that same-sex marriage, as a matter of law, would

necessarily presuppose, that is, sodomy.7,8 It is hardly a stretch to suggest that Louisiana has always

5 That this is so was acknowledged by the majority in U.S. v. Windsor, 133 S. Ct. 2675, 2689(2013) (“It seems fair to conclude that, until recent years, many citizens had not even considered thepossibility that two persons of the same sex might aspire to occupy the same status and dignity asthat of a man and woman in lawful marriage. For marriage between a man and a woman no doubthad been thought of by most people as essential to the very definition of that term and to its role andfunction throughout the history of civilization. That belief, for many who long have held it, becameeven more urgent, more cherished when challenged. For others, however, came the beginnings ofa new perspective, a new insight.”)

6 Katherine S. Spaht, The Last One Hundred Years: the Incredible Retreat of Law from theRegulation of Marriage, 63 LA. L. REV. 243, 253-54 (2003). See also J.-R. Trahan, Impediments toMarriage in Scotland and Louisiana: An Historical-Comparative Investigation, forming Chapter7 of MIXED JURISDICTIONS COMPARED: PRIVATE LAW IN LOUISIANA AND SCOTLAND 173, at 195(2009) (“During most of the American period [of Louisiana legal history], it was evidently assumed,as a matter of custom, that persons of the same sex could not contract marriage with each other.”)

7 See La. R.S. 14:89.

8 The notion that same-sex marriage would necessarily entail any form of sexual intercourse,much less a form proscribed by law, requires special comment. Though it seems not to be widelyknown, the civil law in general and that of Louisiana in particular have long imposed upon spouseswhat is known as the “positive” duty of “fidelity”. As comment (a) to LCC art. 98 explains, “the term‘fidelity’”, as used in Article 98, “ refers not only to the spouses' duty to refrain from adultery, butalso to their mutual obligation to submit to each other's reasonable and normal sexual desires. The

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had a “strong public policy” against a form of marriage that, by definition, would entail behavior that

Louisiana has always defined as criminal.

Third, it is equally clear that opposition to same-sex marriage is not the only “strong public

policy” of Louisiana that might trigger the exception. Alongside that policy there are at least two

others. One is the policy against “polygamy”, reflected in LCC art. 88.9 In the previously referenced

supreme court opinion of 1907, polygamy was specifically mentioned as one of the those forms of

marriage that, even if permitted by the law of some another state, could not be recognized in

Louisiana. This conclusion is buttressed by the fact the polygamy was then (and still today) remains

a criminal offense in Louisiana.10 Another is the policy against “incestuous” marriages, reflected in

LCC art. 90.A11, at least insofar as it concerns unions between truly “close” relations, such as parent

and child, brother and sister, and even aunt (or uncle) and nephew (or niece).12 The 1907 opinion

jurisprudence has held that the latter obligation is a necessary concomitant of marriage.” This dutywould fall on any same-sex married couple in Louisiana, just as it falls on any opposite-sex marriedcouple in Louisiana. And, in the case of a same-sex married couple, the only kind of “sex” that eachmight possibly give the other would be sodomy.

9 “A married person may not contract another marriage.”

10 “Bigamy is the marriage to another person by a person already married and having ahusband or wife living; or the habitual cohabitation, in this state, with such second husband or wife,regardless of the place where the marriage was celebrated.” La. R.S. 14:76.

11 “The following persons may not contract marriage with each other: (1) Ascendants anddescendants. (2) Collaterals with the fourth degree, whether of the whole or of the half blood.”

12 The qualification we have added here (reflected in the “at least insofar” clause of thesentence) is made necessary by the fairly recent case of Ghassemi v. Ghassemi, 998 So.2d 731 (La.App. 1st Cir. 2008). The court of appeal, applying LCC art. 3520.A, concluded that though LCC art.90 prohibits marriages between first cousins, the public policy underlying that prohibition is not so“strong” as to preclude the recognition of out-of-state marriages between first cousins contracted injurisdictions in which such unions are permitted. The court took repeated pains, however, todistinguish first-cousin unions from unions between closer relatives. First, the court wrote this: “In

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mentioned incestuous unions together with polygamous unions. And incest between such “close”

relations, just like polygamy, was then (and still is) a criminal offence.13

With this background now clearly exposed, we can begin to take up the plaintiffs’ question

– why, in 1999, did the Legislature chose to make only one of its “strong public policies” regarding

marriage – that against same-sex marriage – “explicit” by writing it into the text of LCC art. 3520.

To us the reason could not be more obvious. Of the three kinds of marriage against which Louisiana

has a strong public policy – same-sex marriage, polygamous marriage, and closely-incestuous

marriage –, only the first was an “issue” in 1999. At that time, the “homosexual rights” movement

was really starting to take off, manifested in a number of ways on a number of fronts: television

sitcoms featuring homosexuals in a positive light, sympathetic media reports, celebrities and public

intellectuals lining up to speak out against the “last acceptable prejudice”, and – this is what’s most

important – state court decisions here and there recognizing a “state constitutional” right for same-

finding no violation, we make a clear distinction between the marriage of first cousins and marriagescontracted by more closely-related collaterals, i.e., uncle and niece, aunt and nephew, and siblings.”Id. at 743-44. Still later, the court added this: “[W]e emphasize that the instant case involves themarriage of first cousins. Although the previously noted laws, both past and present, appliedgenerally to all collaterals within the fourth degree, we reiterate that in finding no violation of astrong public policy, we make a clear distinction between the marriage of first cousins and marriagescontracted between more closely-related collaterals. While the former is commonly accepted, thelatter is greatly condemned.” Id. at 747-48. At the very least, then, these statements of the court leftthe door open to the possibility that out-of-state unions between closer relatives might not berecognized in Louisiana. But one might even go so far as to say (and we would) that these statementsshould be read as obiter dictum to the effect that such unions cannot be recognized.

13 See La. R.S. 14:78 (“Incest is the marriage to, or sexual intercourse with, any ascendantor descendant, brother or sister, uncle or niece, aunt or nephew, with knowledge of theirrelationship.”)

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sex couples to enter into marriage-like civil unions14, if not into marriage itself15. By contrast, there

was, at that time, no “movement” afoot in the entertainment industry, the media, or academia to

legitimize multi-party marriages or marriages between close relatives and, more important still, no

judicial decisions had been rendered anywhere even hinting, much less holding, that there might be

some constitutional right, state or federal, to enter into such unions. For these reasons, then, back in

1999, whereas the Legislature faced a reasonable prospect that Louisiana judges might be called

upon to apply unamended Article 3520 to cases involving out-of-state same-sex marriages, the

Legislature faced no prospect whatsoever, reasonable or otherwise, that Louisiana judges might be

called upon to apply unamended Article 3520 to polygamous or closely-incestuous marriages. As

was only natural and reasonable, the Legislature, while choosing to provide the courts with

additional guidance and clarification to help them face the prospect that was on the horizon, did not

provide any such additional guidance and clarification to help them face other prospects that were

not. In short, there was at that time no need, no exigency, to take action on any subject other than

same-sex marriage.16

14 Baker v. State, 744 A.2d 864 (Vt. 1999).

15 Baehr v. Miike, Civ. No. 91-1394,1996 WL 694235 (Haw. Dist. 1996), aff’d per curiam,87 Haw.34, 950 P.2d 1234 (Haw. 1997). See also Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Feb. 27, 1998).

16 Though there was at that time no pressing reason for the Legislature to take action onsubjects such as polygamous marriage or closely-incestuous marriage, it is perhaps worthwhile toconsider what might have happened had there been, that is, had then been some sort of pushunderway elsewhere in the United States in support of one or the other of these alternative forms ofmarriage, plus a spattering of judicial decisions in other states finding a constitutional right to oneor the other. Though we admit we cannot be entirely sure, we are convinced, based on what we knowabout the Legislature of 1999 in general and about the sponsors of the bill that became 3520.B inparticular, that it would have taken the same action against the threat to traditional opposite-sexmarriage posed by rising support outside Louisiana for polygamous marriage or closely–incestuous

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“But”, one might well ask, “if it was in fact ‘so clear’ circa 1999 that Louisiana had a ‘strong

public policy’ against same-sex marriage, then why did the Legislature think that any such

‘additional guidance and clarification’ was necessary?” That is a good question, one that demands

an answer, for without that answer one cannot fully understand the reason the Legislature enacted

Article 3520.B. But answering the question is awkward, for it requires getting into a matter of some

delicacy, namely, the Legislature’s attitude toward what might be called the “Louisiana judiciary”,

by which we mean not only the Louisiana state courts but also the federal courts exercising

jurisdiction in Louisiana. It is safe to say that as of 1999, many legislators, including those who

backed Article 3520.B, were less than confident that every imaginable Louisiana judge before whom

an “out-of-state same-sex marriage case” might have been brought would have interpreted the

unamended article objectively and faithfully. To be more precise still, the fear was this: that such a

case might end up before a judge who, lacking a proper understanding of the limited role of the

judiciary within our constitutional system and blinded by a strong ideological commitment to some

form of political “progressivism”, would have conjured up some “creative” interpretation of the

unamended provision – perhaps some sort of “evolutive” argument17 – the upshot of which would

marriage as it did in response to the threat posed thereto by rising support outside Louisiana forsame-sex marriage. That is to say, we believe the Legislature would have amended Article 3520 tomake explicit the state’s strong public policies against these forms of marriage as well. And, had thathappened, surely no one would have accused the Legislature of acting out of some invidious animustoward those who had entered or hoped to enter into such marriages.

17 This is the expression used by students of civil law interpretative methodology to refer toa method of interpreting Civil Code provisions that parallels in many ways the so-called “livingconstitution” approach to interpreting the US Constitution. See generally Kenneth Murchison & J.Randall Trahan, WESTERN LEGAL TRADITIONS & SYSTEMS: LOUISIANA IMPACT 175-76, 178, &186(2003). Though scholarship on interpretative methodology in other civil law systems and inLouisiana consistently mentions this method of interpretation, seemingly with approval, its proprietynevertheless remains controversial. Some scholars, among whom we would include ourselves, fear

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have been that, whatever may have been true in the past, Louisiana no longer has a strong public

policy against same-sex marriage.

This was not, in our view, an unreasonable fear. It is not demeaning to the judiciary in

general nor to this court in particular to point out that there have been (and still are) such judges and

that there have been (and continue to be) such cases.18 No one can deny it. And for that reason alone

the Legislature’s fear must, we think, be counted as reasonable.

Let us, then, sum up. The Legislature’s decision to enact LCC art. 3520.B, far from being a

bizarre departure from traditional “conflict of laws” principles, was an effort to codify those very

principles, an effort that represented a reasoned and proportioned response to the only “threat” to

those principles that was then on the horizon, namely, a potential push to get same-sex marriages that

had been validly celebrated in other states recognized in Louisiana. There’s nothing at all “irrational”

about that.

II. The “strong public policy” against same-sex marriage on which Louisiana Civil Code

article 3520.B is premised has its roots in Louisiana’s traditional “civil law”

understanding of marriage, according to which the procreation and rearing of children

are viewed as its natural concomitants; same sex-marriage cannot be reconciled with

this venerable understanding of marriage.

Though others may think otherwise, we believe that it is impossible for this court to pass on

that this method of interpretation, which can easily be abused, carries with it the very great dangerof undermining the balance of powers struck in the state constitution between the legislative and thejudicial branches of government and perhaps even the very principle of democratic governmentitself.

18 Though there are some cases that everyone (or nearly everyone) would put into thiscategory, such as Dred Scott v. Sandford, 60 U.S. 393 (1857), which others should likewise be soclassified is, of course, to a large extent a matter of perspective. We know of progressives who wouldcategorize the supreme court’s recent decisions in District of Columbia v. Heller, 554 U.S. 570(2008), or Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), in this way. Andfor many conservatives, of course, there is no better example than Roe v. Wade, 410 U.S. 113 (1973).

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the constitutionality of LCC art. 3250.B without considering the “rationality” of the “strong public

policy” against same-sex marriage that lies behind it. For that reason, we offer the following

observations about the theoretical foundations of that policy. As we will show, those foundations are

rooted in a time-honored understanding of marriage that binds it inextricably to the procreation and

rearing of children. And, as will become obvious, same-sex marriage is fundamentally incompatible

with this understanding.

Louisiana’s “strong public policy” against same-sex marriage, a policy reflected not only in

the Civil Code19 but also in the state constitution20, is intimately tied to – indeed, springs from –

Louisiana’s traditional “civil law”21 understanding of marriage. According to that understanding,

marriage necessarily concerns children, specifically, the procreation of children and, once they have

been born, their care, nurture, development, and protection. In this conception, the production and

rearing of children – and not just any children, but children whom the parents produce together

through sexual intercourse with one another – is thought to be one of the most fundamental “ends”

(purposes) of marriage. And the ideal setting for the rearing of children is understood to be the stable

and enduring union of the very parents from whose sexual congress those children spring.

19 See LCC art. 86 (“Marriage is a legal relationship between a man and a woman that iscreated by civil contract.”) (emphasis added); id. art. 89 (“Persons of the same sex may not contractmarriage with each other.”)

20 See La. Const. Art. 12, § 15 (“Marriage in the state of Louisiana shall consist only of theunion of one man and one woman.”)

21 The reference here, of course, is to Louisiana’s distinctive legal heritage, a heritage thatderives most immediately from the law of Spain and the law of France and, beyond them, from thelaw of Rome. See Murchison & Trahan, supra note 17, at 51; J.-R. Trahan, The Continuing Influenceof Le Droit Civil and El Derecho Civil in the Private Law of Louisiana, 63 La. L. Rev. 1019, 1019(2003).

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This traditional civil law understanding of the purpose and function of marriage is clearly

reflected in several of the earliest and most revered sources of Louisiana civil law. Consider, for

example, these passages from Las Siete Partidas, a 13th century compilation of Spanish civil law that

was in force in Louisiana until the late 1820s:

. . . while their bodies were different according to nature, they should be one, so faras love was concerned, so that they could not be divided, preserving faithfulness toone another; and, besides, that from this affection offspring might be born, by whichthe world might be peopled . . . [N]one of these things can be lawfully accomplishedexcept by means of offspring, resulting from marriage brought about by the union ofman and woman. . . .

. . .

. . . . The third [reason marriage was established is] in order that a man mayhave greater love for his children, he being certain that they belong to him. . ..

. . .Very great benefit and many advantages arise from marriage . . . . The second

advantage, that of offspring, is having children lawfully to increase the human race,and all should marry with this intention, not only those who cannot have children, butalso those who do have them. . . . Moreover, love should increase between husbandand wife, since they know that they cannot separate, and are more sure of theirchildren, and love them the more on this account. . . .

. . .The principal reasons for the institution of marriage are two in number; first, to have

children and increase the race of men. . . . 22

Then there are these passages from Jean Domat’s seminal work on French civil law, Les Lois Civiles

dans Leur Ordre Natural, the reading of which was a prerequisite for admission to the Louisiana bar

up until at least the 1840s:

The engagement that marriage makes between the husbandand the wife, and that which birth makes between them and theirchildren, form a particular society in each family . . . .

. . . [T]he union between man and woman, . . . to institutemarriage, . . . was to be the source of multiplication and, at the sametime, of the liaison of human kind, and in order to give to this union

22 4 LAS SIETE PARTIDAS pt. 4, intro. & tit. 2, intro. & laws 3 & 4, at 877, 886, & 887 (RobertI. Burns, S.J., Burns ed. & Samuel Parsons Scott tr., 2001).

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foundations proportionate to the characteristics of the love that mustbe the bond within it . . . .

. . .Thus, marriage, being instituted for the multiplication of

human kind, by the union of man and woman . . . .23

Remarking on the interplay between marriage and procreation, Robert Pothier, the scholar whose

writings on the civil law of the French ancien régime formed the basis for much of the Code

Napoléon and, therefore, of the various Louisiana civil codes, wrote as follows:

Although carnal commerce is not of the essence of marriage, and the man and thewoman may by common consent abstain from it, nevertheless marriage gives to eachof the parties a right on the body of the other, which obligates each of themreciprocally to grant this carnal commerce to the other, when it is demanded of himor her. The reason for this obligation is drawn from the ends of marriage. Theprincipal end is the procreation of children, which clearly cannot be achieved withoutthis commerce.24

Finally, there is the famous “definition of marriage” offered by J.-E.-M. Portalis, head of the legal

commission that wrote the Projet du Gouvernement, which, with certain modifications, became the

Code Napoléon: “[M]arriage . . . is the society of a man and a woman, who unite themselves in order

to perpetuate their species, in order to help each other by mutual assistance bear the weight of living,

and in order to share their common destiny.”25

Reading through these early Louisiana civil law sources, one cannot help but be struck by

the authors’ insistence on the intimate interdependence between marriage, on the one hand, and the

23 2 Jean Domat, LES LOIS CIVILES DANS LEUR ORDER NATUREL ch. III, secs. I-IV, pp. xiii-xvi(2d ed. 1697) (J.R. Trahan tr., 2014).

24 Robert Pothier, TRAITÉ DU CONTRAT DE MARIAGE no 5, p. 4, in 5 OEUVRES DE POTHIER

(Dupin ed., nouv. ed. 1825) (J.R. Trahan tr., 2014).

25 J.-E.-M. Portalis, Présentation au Corps Législatif, in 9 RECUEIL COMPLET DES TRAVAUX

PRÉPARATOIRES DU CODE CIVIL 138, at 140 (P.A. Fenet ed., 1827) (J.R. Trahan tr., 2014)

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procreation and rearing of children, on the other. For them, the optimal outcome for a child was that

he be born to and then reared by parents who were knit together for the long term by marriage and

to both of whom the child would be biologically related, that is, both of whom would recognize him

as “their own flesh and blood”.

Lest there be any misunderstanding, caused perhaps by our having cited these “ancient”

Louisiana civil law sources, let us point out that this understanding of marriage is not merely a thing

of the distant past. Still in the past, but not so remotely, the state supreme court, interpreting then

LCC art. 1556 (which provided for the revocation of donations inter vivos upon the birth of a child),

confirmed this understanding of marriage:

The object of marriage, it cannot be disputed, is the perpetuation of families; and theprocreation of children is, of necessity, in the contemplation of the parties, to thatcontract. The interpretation which would make the Legislature declare a donationmade in favor of marriage, to be revoked by the happening of that event (the birth ofchildren) which, as all the authorities agree, is a principal object of marriage, isinadmissible.26

Much more recently, Professor Spaht, a noted authority on Louisiana family law, spoke out in favor

of the traditional understanding in these words:

A status that is marriage in all but name confirms the idea that marriage is about anessentially private, intimate personal relationship publicly recognized and not aboutthe need to provide a biological father and mother committed to each other, hopefullyfor life, for the purpose of rearing healthy children. Marriage alone has been theunique publicly privileged intimate relationship. The law privileges marriage so thatmen and women will be channeled into this vital social institution to continue toperform the very public function of acculturating the next generation of citizens. Thatacculturation is a long-term enterprise, expensive in both time and economic

26 Ledoux v. Her Husband, 10 La. Ann. 663 (1855).

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resources. There must be no other faux competitor if marriage, properly understood,is to be protected.27

But perhaps the best evidence that the traditional civil law understanding of marriage remains

alive in Louisiana is the content of Louisiana’s contemporary family law itself. This understanding

of marriage, which, to repeat, sees marriage and the procreation and rearing of children as necessarily

interdependent, undoubtedly underpins much of that law as it is expressed in the current Civil Code.

Let us consider, first, the relationship between marriage and procreation. It cannot be gainsaid that

the bulk of the law of “paternal filiation”, that is, the law that tells us “who is the father” of a given

child, is predicated on the law of marriage. Undoubtedly the most fundamental rule of paternal

filiation is that which is embodied in current LCC art. 185, which provides that “[t]he husband of

the mother is presumed to be the father of a child born during the marriage or within three hundred

days from the date of the termination of the marriage.”28 Along the same lines is LCC art. 195, which

creates a presumption of paternity in favor of “[a] man who marries the mother of a child . . . and

who, with the concurrence of the mother, acknowledges the child by authentic act.” Next, let us

consider the relationship between marriage and child rearing. Among the legal effects of marriage

27 Katherine S. Spaht, State Constitutional Amendments Prohibiting Same-sex Unions:Winning the “Dual Object” Argument, 7 FL. C. L. REV. 339, 361-62 (2005). See also Katherine S.Spaht, Revolution and Counter-Revolution: the Future of Marriage in the Law, LOY. L. REV. 1, 47-48 (2003). (“Successful societies isolate and prefer a certain type of sexual union over others becauseof the need of children for both mothers and fathers. As Maggie Gallagher summarized in her articleentitled, What Is Marriage For?, ‘the purpose of marriage is inherently normative - to foster a certainkind of sexual union between men and women characterized by caretaking, sharing of resources,procreation, and long-term commitment in order to encourage the protection of children and thereproduction of society.’”)

28 This is Louisiana’s current statement of the ancient Roman law rule pater is est quemnuptiae demonstrant (the father is he whom marriage indicates). See generally J.-R. Trahan, Glossaeon the New Law of Filiation, 67 LA. L. REV. 387, 400-01 (2007) (gloss # 15).

Page 17 of 20


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is the conferral on the married parents of “family authority”, described in LCC art. 99 as follows:

“Spouses mutually assume the moral and material direction of the family, exercise parental authority,

and assume the moral and material obligations resulting therefrom.” Regarding this “parental

authority”, it bears noting that it is the prerogative (and responsibility) only of married couples, as

the juxtaposition of LCC arts. 215-237 against LCC arts. 238-245 reveals.29 One element of parental

authority (it might also be thought of as an element of the “material obligations” referred to in Article

99) that is of particular interest here is the responsibility of parents to support their children, a matter

addressed in LCC art. 227. It is telling that in this article the Legislature grounds the obligation of

support not in the mere fact of maternity or paternity itself, but rather in the “very act of contracting

marriage”.30 Thus, we see that, again and again, the concept of marriage is linked up in the minds

of Louisiana’s legislators with the concepts of procreation and child rearing. And back of that

linkage, we believe, is the traditional civil law understanding that whatever else marriage may be

“for”, it is certainly for procreation and child rearing.

So much, then, for Louisiana’s traditional “civil law” understanding of marriage. What

remains for us to consider is what room there is, if any, for same-sex marriage within that

understanding. The indisputable answer is “no room”. It should be obvious that between the

traditional civil law notion of marriage and same-sex marriage there is an unbridgeable chasm.

Same-sex marriage, by its very nature, is not “procreative”. The sexual intercourse in which same-

29 This does not mean that “single parents” or unmarried parents have no “power” over theirchildren. They do. But it is the power of “tutorship”, see LCC art. 246, which suffers morerestrictions and enjoys fewer “perks” than parental authority.

30 This is not to say that unmarried parents have no obligation to support their children. Theydo. See LCC art. 240. Nevertheless, the fact still remains that, for married parents, the obligation ofsupport springs at least in part from the marriage itself.

Page 18 of 20


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sex spouses engage is, by nature, incapable of producing offspring. To produce offspring, such a

couple must reach outside themselves, beyond their union, to some third person, be it a friend or a

stranger. But in that case, the resulting offspring would be the biological progeny of just one of the

spouses, with the consequence that these offspring would end up being reared by parents to one of

whom they were not related biologically. For reasons that we have made clear, this represents a

significant departure from the traditional civil law ideal of marriage.

CONCLUSION

For these reasons, Amici curiae Professors Trahan and Spaht urge this court to uphold the

constitutionality of LCC art. 3520.B.


/s/ Gregory Scott LaCourGregory Scott LaCour (Bar No. 23823)Amanda M. Pendleton (Bar No. 34022)DAVID J. LUKINOVICH, APLC4415 Shores Drive, Suite 200Metairie, Louisiana 70006Telephone: (504) 818-0401Telecopy: (504) 818-0408

Counsel for Amici CuriaeProfessor J. Randall Trahan &Professor Katherine Shaw Spaht

Page 19 of 20


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I hereby certify that, on May 12, 2014, the foregoing brief was filed with the Clerk of the

Court using the Court's CM/ECF system. I further certify that counsel for all parties in this case

are registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Gregory Scott LaCourGregory Scott LaCourMay 12, 2014

Page 20 of 20


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Plaintiffs

v.

JAMES D. CALDWELL, et, al.,

Defendants

* * * * * * * * * * * *

CIVIL ACTION

NO. 13-5090

SECTION F(5)



REF: ALL CASES

*************************************** *

BRIEF OF AMICUS CURIAE

The City of New Orleans (“City”) submits this Brief of Amicus Curiae in support of the

motion for summary judgment [Rec. Doc. No. 86] filed by Plaintiffs in the consolidated cases

(hereinafter “Robicheaux”). Robicheaux asserts that certain state agencies/officials do not

recognize same-sex marriages. Robicheaux further asserts that failure to recognize same-sex

marriages denies equal protection of the laws to same-sex couples. The City, however, has

enacted municipal laws recognizing domestic partnerships and allowing same-sex domestic

partners of City employees to receive benefits from the City’s health care plan as dependents of

their partners. See New Orleans City Code, § 87-1 -87-9. The City submits this Brief to inform

the Court of the existence and substance of those laws and the City’s purpose in enacting those

laws.

Indeed, as expressly set forth in the New Orleans Municipal Code, the City has an

interest in strengthening and supporting all caring, committed, and responsible family forms.

See id. at § 87-1. The City further specified that societal privileges and benefits accorded to

members of a marriage also should be extended to those who meet the qualifications of domestic

partnership. See id.


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Local law further establishes a mechanism whereby domestic partners may publicly

express and document their partnerships and sets forth qualifications for a domestic partnership.

See id. To establish a domestic partnership under local law, partners must submit a Declaration

of Domestic Partnership form1 to the Clerk of the New Orleans City Council. See id. at § 87-2

and 87-5. In completing the Declaration, the partners agree to be jointly responsible for basic

living expenses incurred in the domestic partnership. See id. at § 87-2. The Clerk may accept

Declarations filed by domestic partners who reside in the City of New Orleans or by partnerships

having one partner who works in the City of New Orleans. See id. at § 87-5(b). In addition, to

become domestic partners, neither person may be married, the two must not be related, and both

must be 18 years of age or older. See id. at § 87-6. If one partner previously was in a domestic

partnership, that partnership must have terminated more than six months before submission of

the Declaration. See id. Termination of a domestic partnership is evidenced by filing a written,

notarized notice of termination with the Clerk of City Council. See id. at § 87-8. Upon filing of

the Declaration, the City Chief Administrative Officer will provide the partners with a certificate

showing that the Declaration was filed. See id. at § 87-5(a). A certified copy of the Declaration

may be used as evidence of the existence of a domestic partnership. See id. at § 87-5(e).

Since the enactment of these municipal laws, the Clerk has received Declarations

establishing 472 domestic partnerships, and City employees have exercised their rights to use the

City’s employee benefits for their domestic partners. The City’s stated interest and purpose in

enacting laws recognizing domestic partnerships are supported by these facts. Accordingly, the

City submits this Brief in Amicus Curiae in support of Robicheaux’s motion for summary

judgment.

1 The Declaration can be obtained from the Clerk of the New Orleans City Council.


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/s/ Sharonda R. Williams

SHARONDA R. WILLIAMS (LSB NO. 28809)

CITY ATTORNEY

1300 Perdido Street, Ste. 5E03


Tel. 504-658-9920

Facsimile: 504-658-9868

[email protected]

Attorney for the City of New Orleans


I hereby certify that a copy of the foregoing pleading has been served on all counsel of

record through this Court’s CM/ECF electronic filing system on this 12th day of May, 2014.

/s/ Sharonda R. Williams

SHARONDA R. WILLIAMS



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1158700v1




Plaintiffs

v.


Defendants

*************

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327

SECTION F(5)



REF: ALL CASES

*************************************** *

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS'MOTION FOR PARTIAL SUMMARY JUDGMENT AND DISMISSAL


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Plaintiffs oppose Defendants' Motion for Partial Summary Judgment and Dismissal (Rec.

Doc. 84).

I. SUMMARY OF ARGUMENT

In these consolidated marriage-equality cases, the Court permitted the parties to submit

cross-motions on whether the Fourteenth Amendment requires Louisiana to recognize same-sex

marriages validly celebrated in other jurisdictions. Rec. Doc. 75. Plaintiffs submitted a motion

for partial summary judgment, Rec. Doc. 86, and Defendants submitted a cross-motion for

partial summary judgment and dismissal. Rec. Doc. 84. The parties' cross-motions present two

primary issues: (1) the level of constitutional scrutiny that the Court should apply to Louisiana's

Anti-Recognition Laws1 and (2) whether Defendants have provided a sufficient rationale.

To support their motion, each Defendant submitted an affidavit attesting that he or she

must refuse to recognize the marriages of same-sex couples because of current Louisiana law and

only for that reason. Barfield Aff., Rec. Doc. 84-4 at ¶ 8; Kliebert Aff., Rec. Doc. 84-5 at ¶¶ 8-

10; George Aff., Rec. Doc. 84-6 at ¶¶ 6-9. Defendants offer no evidence to support the laws

beyond those three affidavits, but they argue that they are entitled to summary judgment as a

matter of law. Specifically, Defendants offer two arguments in support of the Anti-Recognition

Laws: that the laws promote heterosexual marriage, which "links children with their biological

parents", and that recognition of same-sex marriage should only occur through "social

consensus." Both arguments are specious and belied by the undisputed facts of this case.2

1

As defined in Plaintiffs' original brief, Louisiana's Anti-Recognition Laws are Article XII, Section 15 of the Louisiana Constitution, Louisiana Civil Code article 3520(B), and any other Louisiana laws denying recognition to valid same-sex marriages celebrated in other jurisdictions.

2In opposition to Defendants' motion, Plaintiffs incorporate the argument and evidence they submitted to support their motion for partial summary judgment.


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The Anti-Recognition Laws do not promote heterosexual marriage at all. Instead, they

harm same-sex couples and their families. It is an undisputed fact that three of the Plaintiff

couples are raising children. One couple, Courtney and Nadine Blanchard, used assisted

reproductive technology to conceive their child. Ex. 3 to Pls.' Mot, Rec. Doc. 86-7 at ¶ 13; Ex. 4

to Pls.' Mot, Rec. Doc. 86-8 at ¶ 13. The couple used Courtney's egg, but Nadine carried the

child.3 Id. Because Nadine gave birth to the child, Louisiana only recognizes her as the child's

mother though the child is biologically Courtney's. Id. The Blanchards exemplify the deficiency

of Defendants' contention that the Anti-Recognition Laws have the purpose of "linking children

with biological parents." Rec. Doc. 84-1 at 16. Instead, these laws have the opposite effect. The

sole purpose and effect of the Anti-Recognition Laws is to demean and deny recognition to

validly married same-sex couples. In the process, the laws harm children by denying a link

between a parent and her child—even when they share a biological link.

Defendants' argument that Louisiana law should only change through social consensus

lacks fundamental understanding of (or simply ignores) the history of Louisiana and current

events. In the late 1950's and 1960's, despite a lack of social consensus on the issue, this Court

was required to intervene when Louisiana resisted racial integration. And just last month, the

Louisiana Legislature refused to prohibit housing discrimination on the basis of sexual

orientation and maintained an anti-sodomy law that blatantly violates the United States

Constitution. Clearly, discrimination against Plaintiffs and other same-sex couples will not end

through social consensus. Like racial segregation, a change in the unconstitutional Anti-

Recognition Laws—which serve only to institutionalize and sanction discrimination against gay,

lesbian, and bisexual Louisianans—requires intervention by this Court.

3

Many couples are using this method of conception, known as reciprocal in vitro fertilization.


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II. LAW AND ARGUMENT

A. The Court Should Apply Heightened Scrutiny to Defendants' EqualProtection Violation.

Plaintiffs discussed the reasons for heightened scrutiny in their opening memorandum.

Rec. Doc. 86-1 at 9-16. In United States v. Windsor, the Court expressly applied "careful

consideration" to consider the constitutionality of DOMA because the law's purpose and effect

was to disapprove and stigmatize same-sex couples. 133 S. Ct. 2675, 2693 (2013). The Court's

"careful consideration" review was later held by the Ninth Circuit to be equivalent to heightened

scrutiny. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014)4; see

also Latta v. Otter, No. 1:13-00482, 2014 U.S. Dist. LEXIS 66417 at *52 (D. Idaho May 13,

2014) ("If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have

applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court

applied heightened scrutiny.").

Louisiana's Anti-Recognition Laws reflect the same disapproval and stigmatization of

same-sex couples as DOMA, and they warrant the same treatment. Defendants boldly state that

Plaintiffs' suggestion that the Anti-Recognition Laws reflect discrimination and animus (by

comparison to race cases, such as Loving v. Virginia) "demeans and humiliates the citizens of

those 34 states, Louisiana among them, who have elected to define marriage as the union of a

man and a woman." Rec. Doc. 84-1 at 24. It takes real cheek for Defendants to assert that it is

Plaintiffs who demean others, especially considering the hardships that Plaintiffs and other same-

sex couples encounter daily due to the laws that Defendants enforce. Amici J. Randall Trahan

4

Defendants seek to limit SmithKline by noting that a call has been made in the Ninth Circuit for briefing on whether SmithKline should be reviewed en banc. But the SmithKline appellant has not argued that the original Ninth Circuit panel erred in its interpretation of Windsor, but rather that the panel's application of Batson was flawed because a comparative juror analysis was required. See Rec. Doc. 92 in No. 11-17357 (9th Cir.). In any event, the case's reasoning is persuasive authority.


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and Katherine Shaw Spaht speculate extensively in their brief about the legislature's intent in

enacting Louisiana Civil Code Article 3520(B) in 1999. Rec. Doc. 97 at 5-12. But amici do not

cite to any legislative history and simply opine as to what the legislature must have intended.5 In

any event, their discussion is irrelevant. "When a distinction between groups of persons appears

on the face of a state law or action, an intent to discriminate is presumed and no further

examination of legislative purpose is required." Secsys, LLC v. Vigil, 666 F.3d 678, 685 (10th

Cir. 2012); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1281-82 (N.D. Okla.

2014), appeal docketed 14-5003 (10th Cir.).

Like DOMA, the Anti-Recognition laws "creat[e] two contradictory marriage regimes

within the same State" and "place[] same-sex couples in an unstable position of being in a

second-tier marriage." Windsor, 133 S. Ct. at 2694. "The differentiation demeans the couple,

whose moral and sexual choices the Constitution protects." Id. The Anti-Recognition Laws also

"divest[] married same-sex couples of the duties and responsibilities that are an essential part of

married life and that they in most cases would be honored to accept were [the Anti-Recognition

Laws] not in force." Id. at 2695. And thus, like DOMA, the Anti-Recognition Laws are a

"deprivation of the liberty of the person" that is protected by the Constitution. Id.

Currently, the Ninth Circuit, the Second Circuit, several district and state supreme courts,

and the Executive Branch have all determined that heightened scrutiny applies to sexual

5

Trahan and Spaht also rely on "ancient Louisiana civil law sources" to support their argument for the current definition of marriage, including Spanish civil law from the 1820's and, Louisiana's Civil Code from 1825 and 1827 (originating from the Napoleonic Code). These same "ancient sources" served as a source for Louisiana's Code Noir, which sanctioned slavery, prohibited African Americans from voting or holding office, and imposed a three-tiered racial caste system. See, e.g., United States v. Louisiana, 225 F. Supp. 353, 363 (E.D. La. 1963) ("Thus, from the Code Noir of 1724 until 1864, the organic law of the state ordained that only free white males could vote or hold office. This was in a state where there were thousands of free men of color."). Just because a law derives from an "ancient source" does not render it unassailable. See Heller v. Doe, 509 U.S. 312, 326 (1993) (the "[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.").


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1158700v1

orientation classifications.6 The Fifth Circuit has had no reason to address the issue since

Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004).7 Even then, the Fifth Circuit did not

need to examine the appropriate level of scrutiny because the alleged treatment of the plaintiff

would have been unconstitutional under rational basis scrutiny. Id. at 532-33 ("Defendants have

not attempted to argue that according homosexuals less protection than other inmates would

advance any legitimate aim."). And cases decided before Lawrence v. Texas, 539 U.S. 558

(2003), date from the period before the Supreme Court recognized the unconstitutionality of

criminalizing consensual intimacy between same-sex couples. Bowers v. Hardwick, 478 U.S.

186 (1986), overruled by Lawrence. Because of the significant doctrinal evolution regarding gay

rights in recent years (as reflected by Romer,8 Lawrence, and Windsor), the historical and

ongoing discrimination experienced by gay and lesbian citizens, and their political powerlessness

to remedy that discrimination, this Court should agree with the Second and Ninth Circuits and

hold that sexual orientation is a quasi-suspect classification that warrants heightened equal

protection scrutiny. SmithKline, 740 F.3d at 484; Windsor, 699 F.3d at 185.

6

SmithKline, 740 F.3d at 484; Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012), aff'd 133 S. Ct. 2675 (2013); Pederson v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 333 (D. Conn. 2012); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 989 (N.D. Cal. 2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010), aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); In re Balas, 449 B.R. 567, 576 (Bankr. C.D. Cal. 2011); Griego v. Oliver, 316 P.3d 865, 884 (N.M. 2013); Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 473 (Conn. 2008); In re Marriage Cases, 183 P.3d 384, 444 (Cal. 2008); Letter from Eric Holder, Att'y Gen., to Congress Regarding Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.

7In James v. Hertzog, 415 F. App'x 530, 532 (5th Cir. 2011), the court cited Johnson for the proposition that rational basis applies to sexual orientation classifications; however, the sentence is dicta because the court determined that the plaintiff was not discriminated against on the basis of sexual orientation.

8Romer v. Evans, 517 U.S. 620 (1996).


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B. The Court Should Hold that Plaintiffs' Right to Marry Is a Fundamental Right Subject to Strict Scrutiny.

Contrary to Defendant's argument, Plaintiffs do not ask this Court to "break new ground"

by recognizing that their right to marry is a fundamental liberty interest. Rec. Doc. 84-1. The

right to marry has long been recognized as a fundamental right.9 All individuals share in

fundamental rights. U.S. Const. amend. XIV, § 1 ("nor shall any State deprive any person

of…liberty…without due process of law") (emphasis added); see also Kitchen v. Herbert, 961 F.

Supp. 2d 1181, 1204 (D. Utah 2013), appeal docketed, No. 13-4178 (10th Cir.). Amici curiae

Lambda Legal et al. ably explained that the recognition of Plaintiffs' marriages is not the creation

of a new "right to same-sex marriage," just as the right to marry that was protected by Loving

was not a "right to inter-racial marriage." Rec. Doc. 92 at 9-10. Characterizing the right as a

"right to same-sex marriage" repeats the mistake of Bowers, which refused to recognize a right to

"homosexual sodomy", by limiting the right too narrowly. Latta, 2014 U.S. Dist. LEXIS at *40

("Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights

to make intimate personal decisions as heterosexual individuals enjoy, but that judicial attempts

to parse those rights out of existence will be met with a harsh rebuke.").

Defendants criticize other district courts that have extended the right to marry to same-

sex couples, arguing that because those courts do not limit the right to heterosexual marriage,

they fail to carefully describe the asserted fundamental liberty interest. Rec. Doc. 84-1 at 22.

But in the past, the fact that a particular right was not enjoyed by all did not mean that the right

was not fundamental. For instance, the right to vote is a fundamental right. Angel v. Fairfield,

9

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."); see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996).


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793 F.2d 737, 739 (5th Cir. 1986). Nevertheless, women were prohibited from voting until a

1920 constitutional amendment was passed after gradual challenge and repeal of local and state

laws that denied women this fundamental right. Lawrence recognized a right to sexual intimacy

between unmarried consenting adults, even though it was historically forbidden. 539 U.S. at 569

(2003) (Scalia, J., dissenting) (discussing the history of anti-sodomy laws).

Although there is no tradition of legal same-sex marriage in Louisiana, marital

recognition would vindicate Plaintiffs' exercise of their fundamental right to marry that the

Fourteenth Amendment extends to all persons. Same-sex couples are, like all others, "entitled to

recognition and protection to enhance their own liberty." Windsor, 133 S. Ct. at 2695.

Louisiana's Anti-Recognition Laws share with DOMA the "purpose and effect to disparage and

injure" (id. at 2710) same-sex couples in violation of their fundamental right to marry, and the

result of "treating those persons as living in marriages less respected than others" (id. at 2696).

Thus, the laws are subject to strict scrutiny.

C. Defendants Have Not Offered a Rational Justification for the Anti-Recognition Laws.

The Court should employ heightened or strict scrutiny to assess the constitutionality of

the Anti-Recognition Laws. But even the lowest tier of scrutiny requires Defendants to

demonstrate that the challenged laws are rationally related to a legitimate state interest. Doe v.

Jindal, 851 F. Supp. 2d 995, 1006 (E.D. La. 2012). The state "may not rely on a classification

whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or

irrational." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985). In

instances where the Court has reason for concern about possible discrimination against a

minority group, rational basis review becomes "a more careful assessment" that is subject to

"greater rigor" than traditional rational basis review. Massachusetts v. U.S. Dep't of Health and


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Human Serv., 682 F.3d 1, 11 (1st Cir. 2012); United States v. Then, 56 F.3d 464, 468 (2d Cir.

1995) (Calabresi, J., concurring).

Defendants offer two rationales for the Anti-Recognition Laws: (1) "linking children

with an intact family formed by their biological parents," Rec. Doc. 84-1 at 16, and (2) "to ensure

that a change as profound as altering the basic definition of marriage would occur only through

wide social consensus," id. at 18. Neither purported rationale satisfies rational basis scrutiny.

1. "Natural Procreation" Is Not a Sufficient Basis for the Anti-Recognition Laws.

The Court should reject Plaintiffs' "natural procreation" rationale for several reasons.

a. The Anti-Recognition Laws Do Not Affect Heterosexual Persons or Their Marriages.

First, the Defendants cannot rationally link the Anti-Recognition Laws to their goal of

promoting "natural procreation" because the laws do not affect heterosexuals at all. The Anti-

Recognition Laws only affect same-sex couples. Defendants do not explain how denying

recognition to same-sex marriages has any effect on heterosexuals whatsoever.10 See Perry v.

Schwarzenegger, 704 F. Supp. 2d at 972 ("permitting same sex couples to marry will not affect

the number of opposite sex couples who marry, divorce, cohabit, have children outside of the

marriage or otherwise affect the stability of opposite sex marriages.").

Nor do the Defendants explain how the Anti-Recognition Laws work to link children

with biological parents. If a heterosexual woman becomes pregnant, the incentives for her and

10

Amici Alan J. Hawkins and Jason S. Carroll make the incredible and, frankly, bizarre conclusory argument that recognition of same sex marriage will somehow impact the "way that heterosexual men create their masculine identities." They posit that defining marriage in "genderless terms" will cause heterosexual men to "view marriages as unrelated to their sense of maleness" and "diminish the likelihood of men … being responsible fathers." Rec. Doc. 94 at 19-21. These amici present no facts demonstrating that heterosexual men are impacted at all by how a state defines marriage. The argument also begs the question whether all laws are meant only to serve the interests of protecting heterosexual men and to prevent them from devolving into a state of "immature, self-centered masculinity." Id. at 17.


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her partner to marry are exactly the same, whether or not Louisiana recognizes same-sex couples

who wed elsewhere. Thus, the State's purported justification fails to provide the necessary

rational link between the classification and the professed governmental end. For this reason,

many other courts presented with this rationale for same-sex marriage have found it

unpersuasive. See, e.g., Bishop, 962 F. Supp. 2d at 1291 ("Marriage is incentivized for naturally

procreative couples to precisely the same extent regardless of whether same-sex couples (or

other non-procreative couples) are included."); Bostic v. Rainey, 970 F. Supp. 2d 456, 478 (E.D.

Va. 2014) appeal docketed sub nom. Bostic v. Schaefer, No. 14-1167 (4th Cir.) ("[T]he purported

'for-the-children' rationale fails to justify Virginia's ban on same-sex marriage because

recognizing a gay individual's fundamental right to marry can in no way influence whether other

individuals will marry, or how other individuals will raise families."); De Leon v. Perry, No. 13-

00982, 2014 U.S. Dist. LEXIS 26236, at *42-43, appeal docketed (W.D. Tex. 2014)

("Defendants' proffered reason fails rational basis because Defendants have failed to establish

how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will

marry, or how other individuals will raise their families."); Goodridge v. Dep't of Pub. Health,

798 N.E.2d 941, 963 (Mass. 2003) ("The department has offered no evidence that forbidding

marriage to people of the same sex will increase the number of couples choosing to enter into

opposite-sex marriages in order to have and raise children.").

b. Procreation Is Not a Prerequisite for Different-SexMarriage and Should Not Be Prerequisite for Same-Sex Marriage.

Louisiana has never limited recognition of marriage to only the marriages of couples who

intend to have children. Indeed, recognition of a heterosexual couple's marriage never hinges on

whether they can or plan to have children. Under the "natural procreation" rationale, however,

the State could constitutionally deny or withdraw the right to marry or marital benefits from


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infertile citizens or couples who do not intend to have children. See Kitchen, 961 F. Supp. 2d at

1201 ("Under the State's reasoning, a post-menopausal woman or infertile man does not have a

fundamental right to marry because she or he does not have the capacity to procreate."). But

Defendants admit that such an inquiry into its citizens' procreative intentions or capacity would

be an unconstitutional governmental invasion of privacy. Rec. Doc. 84-1 at 17 ("Louisiana need

not violate its citizens' privacy to prove it is rational to link marriage to procreation."). Indeed,

Defendants undercut the logic of their own argument: "The simple answer: of course marriage

laws have never imposed anything so bizarre as 'procreative prerequisites.'" Id. at 16. How then,

is it appropriate for the State to justify its ban on marriage recognition by arguing that same-sex

couples are unable to "naturally" procreate? Id. at 15. Defendants cannot constitutionally

impose a "procreative prerequisite" on only same-sex couples by using sexual orientation as a

proxy for fertility, assuming that gays and lesbians are infertile, denying them marriage rights,

and (as in the case of the Blanchards) denying them a legally-recognized link to their own

biological children.

The reality is that both heterosexual and same-sex couples in committed relationships use

alternative means such as adoption or assistive reproductive technology to have children.11 Use

of such means does not make those couples or their children less worthy of state recognition.

Here, three of the Plaintiff couples demonstrate that same-sex couples are having and raising

children in Louisiana. "The reality is that same-sex couples, while not able to 'naturally

11

Louisiana recognizes that persons, other than biological parents, are fully capable of caring for and raising children. La. Child. Code art. 1221 ("a single person, eighteen years or older, or a married couple jointly may petition to privately adopt a child."). Indeed, Louisiana law permitted Plaintiff Nick Van Sickels to adopt his daughter as a "single person." But because his marriage to Andrew Bond is not recognized in Louisiana, Andrew cannot adopt their daughter. If Defendants' purpose of the Anti-Recognition Laws is "linking children with their biological parents", then the adoption laws run counter to that purpose. If the Defendants' purpose is "preservation of the family unit [and] avoidance of the stigma of illegitimacy," then Nick, Andrew, and their daughter demonstrate why the Anti-Recognition Laws are not related to that stated purpose.


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procreate', can and do have children by other means." Bishop, 962 F. Supp. 2d at 1292. As one

federal district court noted recently,

Prohibiting gays and lesbians from marrying does not stop them from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents. There is, in short, no logical connection between banning same-sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes.'

Deboer v. Snyder, No. 12-10285, 2014 U.S. Dist. LEXIS 37274, at *40 (E.D. Mich. March 21,

2014).

Defendants and amici in support of Defendants seem to be arguing for a "most favored"

class of children—"children with an intact family formed by their biological parents." Rec. 83-1

at 15. Defendants and their supporters argue that Louisiana marriage laws are meant to protect

"not just any children, but children whom the parents produce together through sexual

intercourse with one another." Rec. Doc. 97, Br. of J. Randall Trahan and Katherine Shaw Spaht,

at 13. Demeaning the worth of same-sex families (as well as different-sex adoptive families,

single-parent adoptive families, and blended families) is the type of prejudice that Windsor

criticized and rejected. 133 S. Ct. at 2694.

Defendants' supporters also cite discredited social science studies to argue that a

"biological mother and father provide optimal child outcomes." Rec. 91, Br. of Social Science

Professors at 10, citing study by Mark Regnerus. In truth, there is no credible scientific support

that only opposite sex, married, biological parents are capable of successfully raising children.

See Deboer, 2014 U.S. Dist. LEXIS 37274 at *22-23, 30 (finding Regnerus's study and

testimony "represent a fringe viewpoint", "entirely unbelievable and not worthy of serious

consideration" and that the study was "hastily concocted at the behest of a third-party funder"

who "clearly wanted a certain result, and Regnerus obliged."). For a further discussion of


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accepted and modern research supporting adoption by different-sex and same-sex couples,

Plaintiffs respectfully refer the Court to the Brief of Amicus Curiae the Donaldson Adoption

Institute in Support of Plaintiffs. Rec. Doc. 99.

But the Court need not resolve any disputes among the social scientists—to the extent

there is a legitimate dispute—because there is no logical link between child welfare and the Anti-

Recognition Laws. See Latta, 2014 U.S. Dist. LEXIS at *66 ("The parties' debate over the

scientific literature distracts from the essential inquiry into the logical link between child welfare

and Idaho's wholesale prohibition of same-sex marriage. That link is faulty…."). If the State's

goal is to prevent or discourage same-sex couples from having and raising children, the Anti-

Recognition Laws are an ineffective, illogical, bizarre, and irrational means to achieve it. See

Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 994 (S.D. Ohio 2013), appeal docketed ("there is

simply no rational connection between the Ohio recognition marriage bans and the asserted goal,

as Ohio's marriage recognition bans do not prevent gay couples from having children"). Nor

would a goal of preventing gay and lesbian citizens from having families be constitutional or

legitimate. Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (mandated

sterilization of habitual criminals unconstitutional). Like the other states before it, Louisiana

fails to "advance any reason why the government may use sexual orientation as a proxy for

fertility or why the government may need to take into account fertility when legislating." Perry

v. Schwarzenegger, 704 F. Supp. 2d at 997.

c. The State's Procreation Argument Disregards Supreme Court Precedent.

Third, Defendants' argument ignores that other benefits and purposes of marriage cannot

be denied to same-sex couples without legitimate justification. In Turner v. Safley, 482 U.S. 78

(1987), the Court held that prisoners have a right to marry even though they cannot procreate.


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Writing for the Court, Justice O'Connor identified many aspects and benefits of marriage that

created a right to marry separate and apart from a person's reproductive ability or intent:

First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context.

482 U.S. at 95-96. All the reasons that Justice O'Connor identified for why inmates have a

fundamental right to marry apply equally to same-sex couples.12 See Kitchen, 961 F. Supp. 2d at

1211. Turner did not tie marriage to procreation because, of course, the Missouri inmates could

not procreate because they were confined. Thus, a couple cannot be denied a right to marry

because they cannot or do not intend to "naturally procreate." Cf. Lawrence, 539 U.S. at 567 ("it

would demean a married couple were it to be said marriage is simply about the right to have

sexual intercourse").13

12

This includes the legitimation of children born out of wedlock. Louisiana permits the husband of a single mother to establish a presumption of filiation to her child without proof of a biological link. See La. Civ. Code art. 195. Same-sex couples, just like different-sex couples, might marry to legitimize and establish filiation between a child and stepparent.

13Amici Trahan and Spaht discuss a "positive duty of 'fidelity'" that is owed by spouses under article 98 of the Louisiana Civil Code. Rec. Doc. 97 at 7 n. 8. This "duty" reeks of outdated sexist attitudes that our society long ago rejected and would present several insurmountable constitutional problems if the courts attempted to enforce it today. In 1990, the Louisiana Legislature recognized the evolution in thinking onthis matter by eliminating the spousal rape exception from Louisiana law. See La. R.S. § 14:41; 1990 La. Act. 722.


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d. The True Purpose of the Anti-Recognition Laws Are Not Procreation, But Rather Discrimination.

Finally, the "natural procreation" rationale fails because, clearly, the true purpose of these

laws is to express Louisiana's disapproval of gays and lesbians. The State's proposed

justification in promoting a "biological link" is belied by the facts. As explained, Plaintiff

Courtney Blanchard is denied filiation to her biological child because her wife carried the child

to term. Their child and hundreds of others are denied the protections that flow from having two

recognized parents, and they suffer the same humiliation that disturbed the Windsor court. See

133 S. Ct. at 2694. "The only effect the bans have on children's well-being is harming the

children of same-sex couples who are denied the protection and stability of having parents who

are legally married." Obergefell, 962 F. Supp. 2d at 994-995. The result is exceedingly harmful

to the couple and their children.

The illogic of Defendants' argument is highlighted by Trahan and Spaht. They argue that

the purpose of marriage is to allow "spouses [to] mutually assume the moral and material

direction of family," to ensure the "responsibility of parents to support their children," and that

such "obligation of support springs at least in part from the marriage itself." Rec. Doc. 97 at 18.

The Anti-Recognition Laws, however, effectively annul Plaintiffs' marriages, prevent

legitimization of their children, and strip them of the responsibilities of marriage, including the

support and guidance of their children. For instance, if the legally recognized parent of a child

dies or becomes incapacitated, the surviving "non-legal" parent has no automatic authority under

the law to make decisions for the child or even to retain custody of the child. This example also

demonstrates why the Court should reject Defendants' suggestion that same-sex couples can

"arrang[e] their affairs by contract" in lieu of Louisiana's recognition of their marriages. Rec.

Doc. 84-3 at ¶ 8. Louisiana law provides no mechanism to "contract" for custody of a child. The


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only means for obtaining custody of a non-biological child is through adoption, but the Anti-

Recognition Laws preclude Plaintiffs from adopting their children jointly. Far from promoting

stable, intact families that are beneficial to childrearing, the Anti-Recognition Laws are

detrimental to stable families.

Windsor makes clear that same-sex couples and children raised by same-sex couples are

as deserving as other families and children. 133 S. Ct. at 2694. Louisiana has not demonstrated

any legitimate reason for its refusal to recognize marriages same-sex couples or extend the

benefits and protections of the law to their children.

2. Plaintiffs Need Not Wait for Social Consensus to Vindicate Their Constitutional Rights.

Because Defendants assume that Louisiana may permissibly deny recognition to same

sex marriage, they argue that Plaintiffs must wait for the formation of a social consensus in favor

of same-sex marriage before realizing the constitutional guarantee of due process and equal

protection of the law. But where individual rights are violated, the courts have never required

nor waited for social consensus before vindicating these rights. By definition, there is no "social

consensus" when minority rights have been violated by the government. Indeed, the past sixty

years of constitutional jurisprudence have been marked by important decisions when the court

vindicated minority rights ahead of social consensus.

Well before social consensus existed on the issue, Brown v. Board of Education held that

segregation in public schools violated the equal protection rights of plaintiff students. 347 U.S.

483, 495 (1954). The utter lack of social consensus surrounding school desegregation at the time

was most dramatically displayed in the battle over integration of Little Rock's Central High

School. See Cooper v. Aaron, 358 U.S. 1, 8-9 (1958). But in Brown v. Board of Education

(Brown II), the Court ordered that desegregation occur "with all deliberate speed," despite the


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difficulties presented by integration.14 349 U.S. 294, 301 (1955). The Court emphasized that "it

should go without saying that the vitality of these constitutional principles cannot be allowed to

yield simply because of disagreement with them." Id. at 300.

As Judge Wisdom wrote in Hall v. St. Helena Parish School Board, "[o]ne of the

purposes of the Constitution of the United States was to protect minorities from the occasional

tyranny of majorities. No plebiscite can legalize an unjust discrimination." 197 F. Supp. 649,

659 (E.D. La. 1961). In Hall and numerous other cases, the Fifth Circuit repeatedly enforced the

rule of Brown against state legislative and executive action designed to maintain school

segregation. Id.; see, e.g., Lee v. Macon Cnty. Bd. of Ed., 448 F.2d 746, 753-54 (5th Cir. 1971);

Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 847, 852 (5th Cir. 1967); United States v. Jefferson

Cnty. Bd. of Ed., 372 F.2d 836, 878 (5th Cir. 1966); Singleton v. Jackson Mun. Separate Sch.

Dist., 355 F.2d 865, 869-70 (5th Cir. 1966); Singleton v. Jackson Mun. Separate Sch. Dist., 348

F.2d 729, 731 (5th Cir. 1965); Bush v. Orleans Parish Sch. Bd., 308 F.2d 491, 499 (5th Cir.

1962); Poindexter v. La. Fin. Assistance Comm'n, 275 F. Supp 833, 856-57 (E.D. La. 1967). The

Louisiana Legislature and Governor met Brown's desegregation decree with multiple, varied

attempts to circumvent the law, even passing a constitutional amendment aimed at protecting

segregation. Poindexter, 275 F. Supp. at 835; see also Bush, 308 F.2d at 493-94; Hall, 197 F.

Supp at 659. The electorate of Louisiana approved the constitutional amendment, but the Fifth

Circuit declared it unconstitutional and invalidated it. See Poindexter, 275 F. Supp. at 840-41.

14

Because school desegregation vindicated constitutional guarantees, the courts repeatedly reiterated its necessity despite the violence it provoked and the serious difficulties imposed by its implementation. See, e.g., Cooper, 358 U.S. at 8-9. Although it does not affect the Court's analysis, Plaintiffs note that recognition of the marriages of Plaintiffs and other same-sex couples merely integrates them in a system of regulations already in place.


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The citizens of Louisiana responded to integration with "demonstrations, picketing,

stone-throwing, and turmoil that continued for months; all white parents withdrew their children

from one of the schools." Bush, 308 F.2d at 494. Despite this opposition and without social

consensus, the Fifth Circuit consistently required Louisiana and the other states within its

jurisdiction "to give effect to [constitutional] rights . . . by providing equal educational

opportunities." Jefferson Cnty., 372 F.2d at 873. Judge Wisdom's words regarding education are

relevant to marriage today: "When the state provides a benefit, it must do so evenhandedly.

'Such an opportunity, where the state has undertaken to provide it, is a right which must be made

available to all on equal terms.'" Hall, 197 F. Supp. at 659 (quoting Brown, 347 U.S. at 493).

The school desegregation struggle demonstrates that social consensus is unfortunately

often on the wrong side of minority constitutional rights. On a micro-level, the restrictive

covenants at issue in Shelley v. Kraemer reflected the consensus among thirty property owners to

allow only white homeowners into their neighborhood. 334 U.S. 1, 4 (1948). The Supreme

Court held that, though the covenants were adopted by private actors, judicial enforcement

violated the equal protection clause. Id. at 21. The Court's decision recognized the need for

minorities to be protected from housing discrimination at the hands of private actors because "the

enjoyment of property rights [is] . . . an essential pre-condition to the realization of other basic

civil rights and liberties." Id. at 10. But this pre-condition is not guaranteed to Plaintiffs. On

April 28, 2014, the Civil Law and Procedure Committee of the Louisiana House of

Representatives voted to shelve a bill that would guarantee protection from housing

discrimination for gay, lesbian, bisexual, and transgender individuals.15

15

See Emily Lane, Louisiana House Kills Bill Adding LGBT People to Housing Non-discrimination Law, NOLA.com, April 28, 2014, available at http://www.nola.com/politics/index.ssf/2014/04/lbgt_fair_housing_louisiana_ho.html. Attached hereto as Exhibit 1.


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In the First Amendment context, the Fifth Circuit held in Gay Student Services v. Texas

A&M University that Texas A&M could not abridge the freedom of association of certain gay

students by denying recognition to their student group. 737 F.2d 1317, 1330 (5th Cir. 1984).

Citing Texas' criminal prohibition against "homosexual conduct," the university refused to

recognize the student group because it was "likely to 'incite, promote and result' in homosexual

activity." Id. at 1321. Obviously, given the criminal sodomy law, no consensus supporting gays'

right of association existed in Texas at that time. But, although public opinion was against the

students, the court ensured their freedom of association. Id. at 1324; see also Church of Lukumi

Babalu Aye v. City of Hialeah, 508 U.S. 520, 538 (1993) (holding that a town ordinance

preventing animal sacrifice "singled out for discriminatory treatment" the religious practices of a

Santeria church that tried to open in the town).

Of course, the Texas criminal sodomy statute has now been overturned by Lawrence as a

violation of a fundamental due process right. 539 U.S. 558. Even after this clear constitutional

ruling, on April 22, 2014, the Louisiana Legislature has refused to repeal provisions of

Louisiana's crimes against nature statute directed to consensual intimacy between adults.16 This

shocking statement from the Louisiana Legislature demonstrates its utter refusal to acknowledge

Plaintiffs' constitutional rights, despite a Supreme Court mandate on the subject. As it did during

desegregation, the State has determined to actively work against Plaintiffs in their struggle for

equality, enacting constitutional amendments targeted at limiting their participation in society

and ignoring controlling precedent from the Supreme Court. See Poindexter, 275 F. Supp. at

16

Michelle Millhollon, Louisiana House Rejects Repeal of Unenforceable Law, The Advocate, April 22, 2014, available at http://theadvocate.com/news/8916428-123/louisiana-house-rejects-repeal-of. Attached hereto as Exhibit 2.


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840-41. Plaintiffs must look to the federal courts for recognition of their rights rather than wait

for "social consensus."

The developments in constitutional jurisprudence of the past sixty years expose the error

in Defendants' argument that social consensus must precede the recognition of Plaintiffs'

marriages. Like the noble jurists that have come before, this Court must fulfill its responsibility

"to protect nationally created constitutional rights." Jefferson Cnty., 372 F.2d at 873.

Constitutional rights may not be denied while the nation debates their validity. "If the rule were

otherwise, the great guarantee of the equal protection clause would be meaningless." Hall, 197

F. Supp. at 658.

D. The Fourteenth Amendment Does Not Contain a Domestic Relations Exception.

Defendants cite Windsor for the proposition that Plaintiffs' claims must fail because the

States have "virtually exclusive authority" to regulate domestic relations law. Rec. Doc. 84-1 at

4-7. Defendants argue that Windsor's affirmation of state authority to regulate domestic relations

necessarily defeats Plaintiffs' due process and equal protection claims. Rec. Doc. 84-1 at 6.

Defendants' federalism argument conflates different issues. Plaintiffs do not dispute that

Louisiana has authority to regulate marriage; the issue is the manner in which that authority is

exercised. Louisiana is constrained to exercise its domestic-relations power in a manner that is

consistent with the equal protection and due process guarantees of the Fourteenth Amendment.

1. The State Must Exercise Its Domestic Relations Power In Accordance with Equal Protection and Due Process.

Defendants assert that Windsor affirmed the states' authority over domestic relations law

and claim that Windsor "teaches that states are authorized to determine the shape of marriage"

within their borders. Rec. Doc. 84-1 at 19-20. The Constitution, however, as the "supreme law

of the land," limits all state authority. U.S. Const. Art. VI. Even in areas of nearly exclusive


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state control, "[a] primary responsibility of federal courts is to protect nationally created

constitutional rights." Jefferson Cnty., 372 F.2d at 873. In short, "[i]t is . . . not the business of

federal courts how a state [regulates domestic relations]: as long as the state and its agents do not

violate the Constitution." Bush, 308 F.2d at 500.

Thus, although federalism favors protecting state's rights to select policies suited to

citizens within its borders, "[s]tates are not the sole intended beneficiaries of federalism." Bond

v. United States, 131 S.Ct. 2355, 2364 (2011). Federalism "also protects the liberty of all

persons within a State by ensuring that laws enacted in excess of delegated governmental power

cannot direct or control their actions. By denying any one government complete jurisdiction

over all the concerns of public life, federalism protects the liberty of the individual from arbitrary

power." Id. at 2364. Accordingly, "federalism" does not save Louisiana's Anti-Recognition

Laws because those laws violate the Constitution. Each day that the laws remain in effect, these

validly married Plaintiffs are deprived of their Fourteenth Amendment rights.

2. Windsor Did Not Authorize States to Violate the Fourteenth Amendment.

Defendants reason that because Windsor upheld New York's "proper exercise of its

sovereign authority," 133 S. Ct. at 2692, in deciding to validate same-sex marriage, Louisiana's

decision to forbid and nullify same-sex marriages must also be proper. Rec. Doc. 84-1 at 18-19.

This argument ignores the constitutional questions of equal protection and due process presented

in this case. It is the Constitution, not Windsor, that "establish[es] a one-way ratchet" allowing

states to legislate above the constitutional minimum, but not below. Id. New York lawfully

recognized and then permitted same-sex marriage; as Defendants note, this was constitutionally

authorized. Id. Louisiana banned same-sex marriage and effectively annulled the marriages of


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Plaintiffs and similarly situated same-sex couples celebrated in other states, violating their

constitutional rights.

Windsor did not create a family law exception compliance with the Fourteenth

Amendment. Indeed, the Court explained that "[s]tate laws defining and regulating marriage, of

course, must respect the constitutional rights of persons." Windsor, 133 S. Ct. at 2691. Nothing

in Windsor overruled the well-settled precedent that States must comply with equal protection

and due process when exercising their power to regulate marriage. E.g., Turner v. Safley, 482

U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving, 388 U.S. 1. Rather, in

Windsor the Court found that Congress, by enacting DOMA, had departed from its traditional

reliance on State definitions of marriage, and this departure resulted in "interference with the

equal dignity of same-sex marriages, a dignity conferred by the States in their sovereign power."

133 S. Ct. at 2693. DOMA's interference in state-sanctioned marriages deprived married same-

sex couples of their individual liberty in violation of the Fifth Amendment. See 133 S. Ct. at

2695. Nothing in Windsor suggests that States that do not permit same-sex marriage are

therefore excused from complying with the Equal Protection and Due Process Clauses.

As Plaintiffs explained in their opening memorandum, Louisiana has already decided that

it will recognize heterosexual marriages that would not be permitted if they were celebrated on

Louisiana soil. Rec. Doc. 86-1 at 4-5. If Louisiana is going to extend recognition to foreign

marriages, it must apply the same rules to all marriages, or, if Louisiana wishes to apply different

rules to different marriages, it must offer a reason for the differential treatment that satisfies

equal protection and due process scrutiny. Through the Anti-Recognition Laws, Louisiana has

chosen the latter path. The Fourteenth Amendment demands, and nothing in Windsor excuses,


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that Louisiana supply a constitutional justification for its discriminatory treatment of married

same-sex couples.

E. The Full Faith and Credit Clause Does Not Authorize the Anti-Recognition Laws.

Defendants' argument that the Full Faith and Credit Clause, U.S. Const. Art. IV, § 1,

authorizes the Anti-Recognition Laws is also unpersuasive. Defendants argue that "[b]asic FFC

principles…authorize a state not to recognize marriages that violate its public policy." Rec. Doc.

84-1 at 8. That much is not disputed, but the public policy must pass constitutional muster. A

State's public policy cannot arbitrarily target a group for discrimination without a legitimate

reason. The issue in this case is whether Louisiana has a constitutional justification for its public

policy to recognize practically all heterosexual marriages, even if they would be invalid if

celebrated in Louisiana, but deny recognition to similar same-sex marriages. Louisiana has

come forward with no legitimate reason for its public policy.

Louisiana's exercise of any power under the Full Faith and Credit Clause is constrained

by the Fourteenth Amendment. If there were any conflict between the powers authorized by the

Full Faith and Credit Clause and the Fourteenth Amendment, the amendment controls. See

Schick v. United States, 195 U.S. 65, 68-69 (1904).

Defendants also argue that Plaintiffs' causes of action are foreclosed by Section 2 of the

Defense of Marriage Act, 28 U.S.C. § 1738C. Rec. Doc. 84-1 at 10. But Defendants' reliance on

DOMA Section 2 is misplaced. Congress cannot authorize a State to violate the Fourteenth

Amendment. Saenz v. Roe, 526 U.S. 489, 507 (1999); Townsend v. Swank, 404 U.S. 282, 291

(1971); Graham v. Richardson, 403 U.S. 365, 382 (1971); Shapiro v. Thompson, 394 U.S. 618,

641 (1969). Secondarily, Defendants waived reliance on Section 2 as an affirmative defense


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because they did not plead it in their answer, as required by Rule 8(c). Ingraham v. United

States, 808 F.2d 1075, 1078 (5th Cir. 1987).

If the Court were to disagree with these arguments, then Plaintiffs also challenge the

constitutionality of DOMA Section 2 and request an opportunity for separate briefing on that

issue, with an invitation extended to the United States to participate in accordance with Rule 5.1

and 28 U.S.C. § 2403. DOMA Section 2 is unconstitutional for a number of reasons, including

but not limited to (1) that it infringes the liberty and due process interests of same-sex couples in

a similar manner to Section 3, and thus also violates the Fifth Amendment; (2) that it exceeds the

scope of congressional authority because Congress has no power to abrogate Full Faith and

Credit, no more than Congress can abrogate equal protection or due process; and (3) that

application of the Full Faith and Credit clause is limited to recognition and enforcement of sister-

state judgments,17 and since marriages are not judgments Congress had no power to speak to

recognition of marriages.

In sum, Defendants cannot excuse their equal protection and due process violations by

citation to the Full Faith and Credit Clause.

17

See Adar v. Smith, 639 F. 3d 146, 152-53 (5th Cir. 2011) (en banc).


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III. CONCLUSION

For all these reasons, the Court should deny Defendants' motion for partial summary

judgment and dismissal, and grant Plaintiffs' cross-motion.


/s/ J. Dalton CoursonJ. Dalton Courson, 28542, T.A.

[email protected] M. Landis, 7958

[email protected] D. Harris, 28070

[email protected] C. Tigchelaar, 32029

[email protected] M. Wall, 34139

[email protected] PIGMAN WALTHER WITTMANN L.L.C.546 Carondelet StreetNew Orleans, Louisiana 70130Telephone: (504) 581-3200

Attorneys for Forum for Equality Louisiana, Inc., Jacqueline M. Brettner, M. Lauren Brettner, Nicholas J. Van Sickels, Andrew S. Bond, Henry Lambert, R. Carey Bond, L. Havard Scott, III, and Sergio March Prieto

s/ Richard G. PerqueRichard G. Perque, 30669

[email protected] A. BONIN, LLC & RICHARD G. PERQUE, LLC700 Camp StreetNew Orleans, Louisiana 70130Phone: 504-524-3306Fax: 504-529-4179

Attorney for Jonathan P. Robicheaux, Derek Penton, Nadine Blanchard, and Courtney Blanchard


I hereby certify that on this 19th day of May, 2014, the foregoing Memorandum

in Opposition to Defendants' Motion for Partial Summary Judgment and Dismissal has been

served upon all counsel of record by the Court's CM/ECF system.

/s/ J. Dalton Courson


14-31037.1443

TABLE OF CONTENTS

Page

1158700v1

I. SUMMARY OF ARGUMENT ...........................................................................................1

II. LAW AND ARGUMENT ...................................................................................................3

A. The Court Should Apply Heightened Scrutiny to Defendants' Equal Protection Violation. ................................................................................................3

B. The Court Should Hold that Plaintiffs' Right to Marry Is a Fundamental Right Subject to Strict Scrutiny. ..............................................................................6

C. Defendants Have Not Offered a Rational Justification for the Anti-Recognition Laws. ...................................................................................................7

1. "Natural Procreation" Is Not a Sufficient Basis for the Anti-Recognition Laws. .......................................................................................8

a. The Anti-Recognition Laws Do Not Affect Heterosexual Persons or Their Marriages. .............................................................8

b. Procreation Is Not a Prerequisite for Different-Sex Marriage and Should Not Be Prerequisite for Same-Sex Marriage. ..........................................................................................9

c. The State's Procreation Argument Disregards Supreme Court Precedent..............................................................................12

d. The True Purpose of the Anti-Recognition Laws Are Not Procreation, But Rather Discrimination.........................................14

2. Plaintiffs Need Not Wait for Social Consensus to Vindicate Their Constitutional Rights. ................................................................................15

D. The Fourteenth Amendment Does Not Contain a Domestic Relations Exception. ..............................................................................................................19

1. The State Must Exercise Its Domestic Relations Power In Accordance with Equal Protection and Due Process. ................................19

2. Windsor Did Not Authorize States to Violate the Fourteenth Amendment................................................................................................20

E. The Full Faith and Credit Clause Does Not Authorize the Anti-Recognition Laws. .................................................................................................22

III. CONCLUSION..................................................................................................................24


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Page(s)

Cases

Adar v. Smith, 639 F. 3d 146 (5th Cir. 2011).................................................................................23

Angel v. Fairfield, 793 F.2d 737 (5th Cir. 1986) .........................................................................6, 7

In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011).........................................................................5

Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014), appeal docketed 14-5003 (10th Cir.) ...................................................................4, 9, 10, 11

Bond v. United States, 131 S.Ct. 2355 (2011) ...............................................................................20

Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir. 1967) .........................................16

Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)...................................................................9

Bowers v. Hardwick, 478 U.S. 186 (1986) ..................................................................................5, 6

Brown v. Board of Education, 347 U.S. 483 (1954)......................................................................15

Brown v. Board of Education (Brown II), 349 U.S. 294 (1955)..............................................15, 16

Bush v. Orleans Parish School Board, 308 F.2d 491 (5th Cir. 1962) ...............................16, 17, 20

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).......................................18

City of Cleburne, Texas v. Cleburne Living Center., 473 U.S. 432 (1985) .....................................7

Cooper v. Aaron, 358 U.S. 1 (1958) ........................................................................................15, 16

De Leon v. Perry, No. 13-00982, 2014 U.S. Dist. LEXIS 26236 (W.D. Tx. Feb. 26, 2014) ..............................................................................................................................9

Deboer v. Snyder, No. 12-10285, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich. March 21, 2014).................................................................................................................11

Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) .......................................................................7

Gay Student Services v. Texas A&M University, 737 F.2d 1317 (5th Cir. 1984)..........................18

Golinski v. United States Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012)...................................................................................................................5

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) ...................................9


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Graham v. Richardson, 403 U.S. 365 (1971) ................................................................................22

Griego v. Oliver, 316 P.3d 865 (N.M. 2013)...................................................................................5

Griswold v. Connecticut, 381 U.S. 479 (1965)................................................................................6

Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (E.D. La. 1961).....................16, 17, 19

Heller v. Doe, 509 U.S. 312 (1993) .................................................................................................4

Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987) ...........................................................23

James v. Hertzog, 415 F. App'x 530 (5th Cir. 2011) .......................................................................5

Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ..........................................................................5

Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) .....................................5

Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)..................................................6, 10, 13

Latta v. Otter, No. 13-00482, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13, 2014) ..........................................................................................................................3, 6, 12

Lawrence v. Texas, 539 U.S. 558 (2003).....................................................................5, 6, 7, 13, 18

Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971).....................................16

Loving v Virginia, 388 U.S. 1 (1967).....................................................................................3, 6, 21

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ..............................................................................................6

In re Marriage Cases, 183 P.3d 384 (Cal. 2008).............................................................................5

Massachusetts v. United States Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012).......................................................................................................7, 8

Meyer v. Nebraska, 262 U.S. 390 (1923) ........................................................................................6

Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ..............................................12, 14

Pederson v. Office of Personnel Management, 881 F. Supp. 2d 294 (D. Conn. 2012) ....................................................................................................................................5

Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).........................................5, 8, 12

Poindexter v. Louisiana Financial Assistance Commission, 275 F. Supp 833 (E.D. La. 1967) ......................................................................................................................16, 18

Romer v. Evans, 517 U.S. 620 (1996)..............................................................................................5


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Saenz v. Roe, 526 U.S. 489 (1999) ................................................................................................22

Schick v. United States, 195 U.S. 65 (1904) ..................................................................................22

Secsys, LLC v. Vigil, 666 F.3d 678 (10th Cir. 2012) .......................................................................4

Shapiro v. Thompson, 394 U.S. 618 (1969)...................................................................................22

Shelley v. Kraemer, 334 U.S. 1 (1948) ..........................................................................................17

Singleton v. Jackson Municipal Separate School District, 348 F.2d 729 (5th Cir. 1965) ..................................................................................................................................16

Singleton v. Jackson Municipal Separate School District, 355 F.2d 865 (5th Cir. 1966) ..................................................................................................................................16

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).....................................................12

SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) ....................3, 5

Townsend v. Swank, 404 U.S. 282 (1971) .....................................................................................22

Turner v. Safley, 482 U.S. 78 (1987) .................................................................................12, 13, 21

United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966) ................................................................................................................16, 17, 19, 20

United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963)........................................................4

United States v. Then, 56 F.3d 464 (2d Cir. 1995) ..........................................................................8

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

Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff'd 133 S. Ct. 2675 (2013) ..................................................................................................................................5

Zablocki v. Redhail, 434 U.S. 374 (1978)......................................................................................21

Statutes

1 U.S.C. § 7 (Defense of Marriage Act Section 3) ............................................................3, 4, 7, 21

28 U.S.C. § 1738C (Defense of Marriage Act Section 2)........................................................22, 23

28 U.S.C. § 2403............................................................................................................................23

Louisiana's Code Noir......................................................................................................................4


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Louisiana Children's Code article 1221 .........................................................................................10

Louisiana Civil Code article 98 .....................................................................................................13

Louisiana Civil Code article 195 ...................................................................................................13

Louisiana Civil Code article 3520(B) .................................................................................... passim

Louisiana Revised Statutes § 14:41 ...............................................................................................13

Constitutional Provisions

U.S. Const. Art. IV, § 1............................................................................................................22, 23

U.S. Const. Art. VI.........................................................................................................................19

U.S. Const. amend. I ......................................................................................................................18

U.S. Const. amend. V...............................................................................................................21, 23

U.S. Const. amend. XIV, § 1 ................................................................................................. passim

La. Const. Art XII, § 15 ......................................................................................................... passim

Other Authorities

Emily Lane, Louisiana House Kills Bill Adding LGBT People to Housing Non-discrimination Law, NOLA.com, April 28, 2014..............................................................17

Michelle Millhollon, Louisiana House Rejects Repeal of Unenforceable Law, The Advocate, April 22, 2014...................................................................................................18


14-31037.1448

Exhibit 1


pblackman

Rectangle

14-31037.1449

Exhibit 1


14-31037.1450

Exhibit 1


14-31037.1451

Exhibit 2


pblackman

Rectangle

14-31037.1452

Exhibit 2


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1158855v1




Plaintiffsv.

JAMES D. CALDWELL, et, al.,

Defendants

************

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327SECTION F(5)



REF: ALL CASES

*************************************** *

PLAINTIFFS' RESPONSE TO DEFENDANTS' STATEMENT OF UNDISPUTED MATERIAL FACTS

IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs respectfully submit this response to the Statement of Undisputed

Material Facts filed by Defendants Thomas Barfield, Secretary of the Louisiana Department of

Revenue, Kathy Kliebert, Secretary of Louisiana Department of Health and Hospitals, and Devin

George, Louisiana State Registrar. Rec. Doc. 84-3.

1. Admitted.

2. Admitted.

3. Admitted.

4. Admitted.

5. Admitted. However, Plaintiffs note that while Defendants' use of the word

"purported" in an accurate recitation of the Louisiana Civil Code articles, there is nothing

"purported" about their marriages. Plaintiffs legally wed under the laws of the jurisdictions

where they obtained licenses and celebrated their nuptials. Louisiana's characterization of their

marriages as "purported" marriages exemplifies its efforts to demean and humiliate same-sex

couples.


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6. Admitted. Plaintiffs incorporate their response to Defendants' Statement of Fact

No. 5.

7. Denied as written. Louisiana also permits single persons, over the age of 18, to

adopt. La. Child. Code art. 1221 ("a single person, eighteen years or older, or a married couple

jointly may petition to privately adopt a child").

8. Denied.

9. Denied as written. Plaintiffs have no independent knowledge of Tim Barfield's

understanding of Louisiana law.

10. Denied as written. Plaintiffs have no independent knowledge of Kathy Kliebert's


11. Denied as written. Plaintiffs have no independent knowledge of Devin Georges's


12. Denied as written. California's ban on same-sex marriage was overturned by

federal judicial decision. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010),

aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom.

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Further, since April 17, 2014, a federal district

court in Idaho (Latta v. C.L. Butch Otter, No. 1:13-00482 (D. Idaho May 13, 2014)) and a state

circuit court in Arkansas (Wright v. Arkansas, No. 60CV-13-2662 (Pulaski Cnty. Cir. Ct., Ark.

May 9, 2014)) have overturned those states' bans on same-sex marriage. Both decisions are on

appeal. Today, May 19, 2014, the United States District Court for the District of Oregon struck

down that state's same-sex marriage ban. No. 6:13-cv-01834-MC (D. Or. May 19, 2014).


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13. Denied as written. See Response to 12.

Dated: May 19, 2014 Respectfully submitted,












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C E R T I F I C A T E

I hereby certify that a copy of the preceding Response to Defendants' Statement of

Uncontested Material Facts has been served upon all counsel of record by electronic notice via

the Court’s CM/ECF system, this 19th day of May, 2014.



14-31037.1457




Defendants

CIVIL ACTION



REF: ALL CASES

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION

Plaintiffs say the United States Constitution requires Louisiana to recognize

same-sex marriage. But, just last year, the Supreme Court said each state’s citizens

may decide that matter for themselves. United States v. Windsor, 133 S. Ct. 2675

(2013). Louisiana’s citizens did so in 2004. The idea that the Constitution overrides

their decision “is demeaning to the democratic process,” Schuette v. BAMN, 134 S.

Ct. 1623, 1637 (2014) (op. of Kennedy, J.), and should be rejected.

Based on the parties’ submissions, there are no genuine disputes as to any

material facts.1 The parties agree that Louisiana law prevents defendants from

recognizing plaintiffs’ same-sex marriages. LA. CONST. art. XII, § 15; LA. CIV. CODE

1 Defendants do not contest plaintiffs’ standing. See Windsor, 133 S. Ct. at 2685 (plaintiff “suffered a redressable injury” when made to pay taxes under allegedly invalid law); Adar v. Smith, 639 F.3d 146, 150 (5th Cir. 2011) (en banc) (Appellees had standing when “denied a revised birth certificate containing [their] names … as parents”). Plaintiffs’ full faith and credit claim, however, should be dismissed for failure to state a claim. Def. MSJ 10-11.


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2

art. 3520(B).2 The Court can decide the constitutional recognition issues as a matter

of law. Therefore, defendants ask the Court to: (1) deny plaintiffs’ partial motion for

summary judgment (Doc. 86), and (2) grant defendants’ partial motion for summary

judgment and motion to dismiss (Doc. 84).

ARGUMENT

I. PLAINTIFFS WOULD NULLIFY LOUISIANA’S AUTHORITY TO DEFINE MARRIAGE.

Plaintiffs’ equal protection and due process claims fail on their own terms. See II,

III, infra. They also fail because they would nullify Louisiana’s “historic and

essential authority to define the marital relation.” Windsor, 133 S. Ct. at 2692. That

authority was of “central relevance,” id., to the Supreme Court’s decision last year

invalidating the federal marriage definition in DOMA section 3. The Court found

section 3 violated the Fifth Amendment rights of same-sex couples lawfully married

under New York law because of section 3’s “unusual deviation from the usual

tradition of recognizing and accepting state definitions of marriage.” Id. at 2693.

New York’s decision to “recognize and then to allow same-sex marriages” was,

Windsor underscored, “without doubt a proper exercise of its sovereign authority

within our federal system.” Id. at 2692. Windsor thus affirms that states act within

2 See Pl. MSJ (Doc. 86-1) 4; Pl. Stmt. (Doc. 86-4) 2; Def. MSJ (Doc. 84-1) 1-2; Def. Stmt. (Doc. 84-3) 1-3. Defendants disagree, however, with some of plaintiffs’ characterizations of Louisiana law. For instance, it is incorrect to say that Louisiana Revenue Information Bulletin No. 13-024 “will not follow” IRS Revenue Ruling 2013-17, Doc. 86-4 ¶9, since the IRS ruling applies only to the federal government. Doc. 84-4 (Barfield aff.) ¶¶10, 12. It is also incorrect to say that the Louisiana bulletin and tax forms are “contrary to La. R.S. 47:294,” Doc. 86-4 ¶12, since the statute must be construed in light of the Louisiana Constitution. Doc. 84-4 (Barfield aff.) ¶¶7-12. But these are legal, not factual disagreements, and they do not prevent the Court from deciding the constitutional issues as a matter of law.


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3

their authority when they democratically decide whether to recognize same-sex

marriage. See, e.g., id. at 2692-93 (observing “[t]he dynamics of state government in

the federal system are to allow the formation of consensus” respecting a “far-

reaching” matter like same-sex marriage). In contravention of Windsor, plaintiffs

would constitutionalize the issue and nullify Louisiana’s authority to decide it.

Plaintiffs’ claims should fail for that reason alone. See Def. MSJ (Doc. 84-1) 3-7.3

Last month, the Supreme Court reinforced Windsor’s respect for state authority

in Schuette, which rejected an equal protection challenge to a Michigan

constitutional amendment forbidding affirmative action in public universities. The

Court found that “Michigan voters [had] exercised their privilege to enact [the

amendment] as a basic exercise of their democratic power.” 134 S. Ct. at 1636 (op. of

Kennedy, J.). Recognizing the amendment reflected “the national dialogue

regarding the wisdom and practicality of [affirmative action],” Schuette held that

“courts may not disempower the voters from choosing which path to follow.” Id. at

1631, 1635. To deem affirmative action too “sensitive,” “complex,” or “delicate” for

voters would be “an unprecedented restriction on the exercise of a fundamental

right held not just by one person but by all in common.” Id. at 1637. “It is

demeaning to the democratic process,” the Court said, “to presume that the voters

are not capable of deciding an issue of this sensitivity on decent and rational

3 Their claims also fail in light of the Faith and Credit Clause, which does not require a state to recognize out-of-state marriages. Def. MSJ 7-10; Baker v. Gen. Motors Corp., 522 U.S. 222, 232-33 (1998) (full faith and credit “does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate”) (citation omitted). Congress confirmed that principle by enacting DOMA section 2. Def. MSJ 9-10 (discussing 28 U.S.C. § 1738C).


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4

grounds,” and even if debates like these “may shade into rancor … that does not

justify removing [them] from the voters’ reach.” Id. at 1637, 1638.

Schuette speaks directly to the issue of state authority here. As with affirmative

action, there is an ongoing “national dialogue regarding … [same-sex marriage],”

and “courts may not disempower the voters from choosing which path to follow.” Id.

at 1631, 1635. As with affirmative action, it would be “demeaning to the democratic

process to presume … voters are not capable of deciding an issue of this sensitivity

on decent and rational grounds.” Id. at 1637. Indeed, it is the responsibility of

voters—not the courts—to decide the issue, because “[f]reedom embraces the right,

indeed the duty, to engage in a rational, civic discourse in order to determine how

best to form a consensus to shape the destiny of the Nation and its people.” Id; cf.

Windsor, 133 S. Ct. at 2692 (“In acting first to recognize and then to allow same sex

marriages, New York was responding ‘to the initiative of those who [sought] a voice

in shaping the destiny of their own times.’”) (quoting Bond v. United States, 131 S.

Ct. 2355, 2359 (2011)). Schuette thus reinforces Windsor’s point that a state’s

decision to recognize same-sex marriage, or not to, is “without doubt a proper

exercise of its sovereign authority within our federal system.” 133 S. Ct. at 2692.

Louisiana’s voters spoke to the issue in 2004, as New York’s voters did in 2011.

With respect to the validity of that sovereign decision, Windsor and Schuette speak

in unison: “There is no authority in the Constitution of the United States or in [the

Supreme] Court’s precedents for the Judiciary to set aside [the] laws that commit

this policy determination to the voters.” Schuette, 134 S. Ct. at 1638.


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5

While noting Windsor’s “concern” for “the traditional State prerogative to define

marriage within its borders,” plaintiffs assert that, at bottom, “Windsor was an

equal-protection and due-process case, not a federalism case.” Pl. MSJ 24. This

radically oversimplifies Windsor, in which federalism and individual rights worked

hand-in-glove. Windsor ruled DOMA section 3 was a “discrimination[ ] of an

unusual character” precisely because it was an “unusual deviation from the usual

tradition of recognizing and accepting state definitions of marriage.” 133 S. Ct. at

2693. To be sure, the Court did not ground its decision solely in federalism, because

it recognized a “limited” federal authority over marriage. See id. at 2690 (noting

“discrete” legislative examples that “establish the constitutionality of limited federal

laws that regulate the meaning of marriage” for federal purposes). But that does not

change the fact that Windsor’s holding turned on section 3’s broad usurpation of

“the State’s power in defining the marital relation.” Id. at 2692. That power, which

the Court spent nine paragraphs discussing, was not “unnecessary” to the decision.

Pl MSJ 24. To the contrary, the Court said that, “[i]n order to assess the validity of

[section 3] … it is necessary to discuss the extent of the state power and authority

over marriage as a matter of history and tradition,” 133 S. Ct. at 2691, and

concluded that “[t]he State’s power in defining the marital relation is of central

relevance in this case,” id. at 2692 (emphases added).

Unable to erase Windsor’s obvious grounding in federalism, plaintiffs instead

raise Loving v. Virginia, 388 U.S. 1 (1967), arguing that Virginia “advanced a

federalism argument” in that case too. Pl. MSJ (Doc. 86-1) 24. That is a smoke-


14-31037.1462

6

screen. In Loving, Virginia vainly attempted to use federalism to justify “invidious

racial discrimination” that violated the “clear and central purpose of the Fourteenth

Amendment” and triggered strict scrutiny. Loving, 388 U.S. at 11, 10. This case, by

contrast, involves a novel right which no state had even recognized ten years ago

and which 34 states do not recognize today, and a classification which triggers only

rational basis review. See II.A, infra. The fact that the Loving defendants invoked

federalism to justify white supremacy laws has nothing to do with Louisiana’s

federalism argument in this case. One might as well say that the fact that the

plaintiffs in Dred Scott v. Sandford invoked due process to justify slavery should

count against plaintiffs’ due process arguments here.4 That argument would be just

as baseless as plaintiffs’ Loving argument.

II. LOUISIANA’S MARRIAGE LAWS SATISFY THE EQUAL PROTECTION CLAUSE.

A. Sexual orientation does not trigger heightened scrutiny.

Plaintiffs spend much of their argument urging the Court to apply heightened

scrutiny. Pl. MSJ 10-16. They rely on Windsor and, alternatively, on the traditional

suspect-class factors. But binding precedent subjects Louisiana’s marriage laws

only to rational basis review, which they satisfy. See Def. MSJ 12-20.

1. Windsor reaffirms binding precedent that applies rational basis review to sexual-orientation classifications.

As plaintiffs concede, “[t]he Fifth Circuit has applied the lowest level of equal

4 See Dred Scott v. Sandford, 60 U.S. 393, 450 (1856) (reasoning that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, … could hardly be dignified with the name of due process of law”); cf. id. at 626 (Curtis, J., dissenting) (“Nor, in my judgment, will the position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, bear examination.”).


14-31037.1463

7

protection scrutiny, rational basis, to sexual-orientation discrimination.” Pl. MSJ 11

(citing Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)); see also Def. MSJ 11

n.7 (“[n]ine other circuits agree”). Johnson remains good law: it followed the

Supreme Court’s decision in Romer v. Evans, which applied rational basis review to

a sexual-orientation classification in the Colorado Constitution. See Romer, 517 U.S.

620, 633 (1996) (asking whether Amendment 2 “bear[s] a rational relationship to an

independent and legitimate legislative end”). Windsor expressly reaffirmed Romer.

See Windsor, 133 S. Ct. at 2692 (relying on and quoting Romer, 517 U.S. at 633).

Unless and until the Supreme Court demands heightened scrutiny for sexual

orientation, lower courts must apply rational basis under Romer. See, e.g.,

Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“the

Court of Appeals should follow the case which directly controls, leaving to [the

Supreme] Court the prerogative of overruling its own decisions”).

Contrary to plaintiffs’ argument, Pl. MSJ 11, Windsor did not mandate

heightened scrutiny when it said that “‘[d]iscriminations of an unusual character

especially suggest careful consideration to determine whether they are obnoxious to

the constitutional provision.’” 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633).

That language from Windsor could not possibly require heightened scrutiny: it is a

quotation from Romer, which applied rational basis.5 Moreover, plaintiffs

misunderstand Windsor’s point. Section 3 of DOMA was “unusual,” not because it

5 Furthermore, Romer drew this “careful consideration” language from a case invalidating a state tax under rational basis. See Louisville Gas & Elec. v. Coleman, 277 U.S. 32, 37-38 (1928) (tax must “bear[ ] a reasonable and just relation to the act in respect to which the classification is proposed”) (quotes omitted).


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8

classified by sexual orientation, but because it “depart[ed] from [the] history and

tradition of [federal] reliance on state law to define marriage.” Windsor, 133 S. Ct.

at 2692. Louisiana’s marriage laws are the opposite of section 3: far from a novel

intrusion into domestic relations law, they instead fall squarely within Louisiana’s

“historic and essential authority to define the marital relation.” Id.

The Court should not follow the Ninth Circuit’s SmithKline decision, which

misinterpreted Windsor. See Pl. MSJ 11-13 (relying on SmithKline Beecham Corp.

v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013)). Windsor found DOMA section 3 was

actually motivated by an “illegitimate purpose,” see 133 S. Ct. at 2696, contravening

a basic requirement of rational basis review. See, e.g., Mahone v. Addicks Utility

Dist., 836 F.2d 921, 933 (5th Cir. 1988) (classification passes rational basis “if …

rationally related to a legitimate state interest”) (citing City of Cleburne v. Cleburne

Living Ctr., Inc., 472 U.S. 432, 439-40 (1985)). This is the same rational basis

review applied in Romer. See 517 U.S. at 632 (explaining, “[i]n the ordinary case, a

law will be sustained if it can be said to advance a legitimate government interest”).

Nowhere does Windsor say it overruled Romer and established a new heightened

scrutiny standard for sexual-orientation, and the Ninth Circuit was mistaken to

read such an intent into Windsor. (Moreover, the Ninth Circuit’s decision is

currently subject to a sua sponte en banc call, see Def. MSJ 11 n.7).

Finally, common-sense says Windsor did not adopt heightened scrutiny.

Heightened scrutiny involves a distinct formula. See, e.g., United States v. Virginia,

518 U.S. 515, 532-33 (1996) (under heightened scrutiny, state bears “demanding”


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9

burden of showing an “exceedingly persuasive” justification, namely that the

“classification serves ‘important governmental objectives and that the

discriminatory means employed’ are ‘substantially related to the achievement of

those objectives’”) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724

(1982)). The Windsor opinion contains no hint of that formula.

2. Louisiana’s marriage laws are not “unusual” but instead follow longstanding conflicts-of-law rules.

Plaintiffs’ alternative argument for heightened scrutiny under Windsor contends

that Louisiana’s non-recognition of same-sex marriage is an unusual deviation from

its historic practice. They claim that, “[j]ust as” section 3 of DOMA departed from

federal reliance on state marriage law, “so too” do Louisiana’s marriage laws

“depart[ ] from Louisiana history and tradition of upholding the validity of out-of-

state marriages.” Pl. MSJ 11. Plaintiffs misunderstand Louisiana law.

The rule in Louisiana has always been that it will recognize out-of-state

marriages “as a matter of comity,” but this “spirit of comity … does not require

[Louisiana] to recognize a marriage which is contrary to its own public policy.”

Brinson v. Brinson, 96 So.2d 653, 659 (La. 1957) (refusing to recognize fraudulent

common-law marriage from Mississippi); see also, e.g., Bloom v. Willis, 60 So.2d 415,

417 (La. 1952) (recognizing another state’s non-ceremonial marriage “out of comity”)

(citing Succession of Marinoni, 148 So. 888 (La. 1933)). Plaintiffs’ own cases

recognize this long-standing rule,6 which was codified in Civil Code article 3520.

6 See Pl. MSJ 4-5; see, e.g., Ghassemi v. Ghassemi, 2007-1927, p. 11 n.15 (La. App. 1 Cir. 10/15/08), 998 So.2d 731, 739 n.15 (traditional rule required court to determine “whether recognizing [the foreign marriage] would violate the public policy of [Louisiana]”); United


14-31037.1466

10

See, e.g., Ghassemi, 998 So.2d at 739 n.15 (article 3520 “essentially codified the

previous comity analysis”); cf. Restatement (2d) Conflicts of Laws § 284 cmt. c

(noting rule that “[a] state will not give a particular incident to a foreign marriage

when to do so would be contrary to its strong local policy”).

Consequently, there is nothing “unusual” about Louisiana’s decision to deny

recognition to same-sex marriages on strong public policy grounds. That decision

falls squarely within Louisiana’s longstanding conflicts-of-law approach. Nor is it

unusual that Louisiana addressed the issue recently, and not before: the issue arose

only in the last two decades. See, e.g., Baker v. State, 744 A.2d 864, 868 (Vt. 1999)

(Vermont Constitution requires state “to extend to same-sex couples the common

benefits and protections that flow from marriage under Vermont law”).7

3. Binding precedent forecloses plaintiffs’ suspect-class argument.

Alternatively, plaintiffs claim that sexual orientation qualifies as a “suspect” or

States ex rel. Modianos v. Tuttle, 12 F.2d 927, 928 (E.D. La. 1925) (noting “well-recognized exception” to validity of foreign marriages where “the law-making authority has declared [the marriage] shall not be allowed any validity as a matter of general policy”); Succession of Caballero v. Executor, 24 La. Ann. 573, 575 (1872) (noting “well settled” rule denying foreign marriages recognition for “reasons of public policy”). A few Louisiana appellate courts misstate the rule as one of “full faith and credit,” see, e.g., Fritsche v. Vermilion Parish Hosp. Serv. Dist. No. 2, 2004-1192, p. 3 (La. App. 3 Cir. 2/2/05), 893 So.2d 935, 937-38), but the vast weight of authority correctly identifies the rule purely as one of comity. See, e.g., Chivers v. Couch Motor Lines, Inc., 159 So.2d 544, 549 (La. App. 3 Cir. 1964) (Tate, J.) (relying on traditional rule in Brinson and Marinoni, supra). In any event, article 3520 plainly codifies the rule as one of comity. See LA. CIV. CODE art. 3520 cmt. b (presumptive validity of foreign marriage may be defeated by showing applicable law “would invalidate the marriage for reasons of ‘a strong public policy’”).

7 See also, e.g., In re Opinions of the Justices, 802 N.E.2d 565, 569-72 (Mass. 2004) (allowing civil unions but not marriage for same-sex couples “violates the equal protection and due process requirements” of Massachusetts Constitution); and see generally Forum for Equality PAC v. McKeithen, 2004-2477, pp. 26-28 (La. 1/19/05); 893 So.2d 715, 733-34 (discussing motivation for enacting Louisiana Constitution article XII, § 15).


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“quasi-suspect” class under traditional suspect-class factors. Pl. MSJ 13-15. This

argument, however, is foreclosed by binding precedent—Johnson and Romer—that

sexual-orientation classifications merit rational basis review only. As explained

above, Windsor reaffirmed this precedent. See II.A.1, supra.

Indeed, in Windsor the Supreme Court had ample opportunity to adopt this

suspect-class rationale, and yet did not. For instance, the Second Circuit opinion

under review elaborately analyzed the suspect-class factors and applied heightened

scrutiny. Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012). In the

Supreme Court, the Solicitor General spent nineteen pages making the same

argument. Merits Br. for United States at 16-36, United States v. Windsor, 133 S.

Ct. 2675 (2013) (No. 12-307). Finally, while the case was in the lower courts, the

Attorney General had announced the President’s view that “‘classifications based on

sexual orientation should be subject to a heightened standard of scrutiny,’” leading

the Justice Department to stop defending DOMA. Windsor, 133 S. Ct. at 2683

(quoting Attorney General letter). Despite all this, the Supreme Court did not

analyze the suspect-class factors and adopt heightened scrutiny. Surely, if the Court

had intended to do so—and in the process overrule Romer and reject nine contrary

circuit decisions applying rational basis review—it would have said so.

B. Louisiana’s marriage laws do not discriminate based on sex.

Alternatively, plaintiffs claim Louisiana’s marriage laws trigger heightened

scrutiny because they discriminate based on sex. They argue Louisiana does not

recognize their marriages solely “[b]ecause each [p]laintiff is married to a person of

the same sex, rather than a person of the opposite sex,” Pl. MSJ 15, constituting


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sex-based discrimination under equal protection. Plaintiffs are mistaken.

Louisiana’s marriage laws do not engage in sex discrimination because they do

not advantage one sex over the other. See, e.g., Personnel Admin. of Mass. v. Feeney,

442 U.S. 226, 273 (1979) (sex discrimination occurs when laws are “overtly or

covertly designed to prefer males over females”); United States v. Virginia, 518 U.S.

at 532 (the Court has “carefully inspected official action that closes a door or denies

opportunity to women (or to men)”). With respect to marriage, Louisiana treats men

and women exactly the same: it “does not draw any distinctions between same-sex

male couples and same-sex female couples, does not place any disproportionate

burdens on men and women, and does not draw upon stereotypes applicable only to

male or female couples.” Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252,

1286 (N.D. Okla. 2014). It would be a different matter if Louisiana recognized out-

of-state marriages between two men but not two women, or allowed married lesbian

couples to adopt but not married gay couples. See, e.g., Hernandez v. Robles, 855

N.E.2d 1, 10 (N.Y. 2006) (New York’s man-woman definition “does not put men and

women in different classes, and give one class a benefit not given to the other”).

That would be sex discrimination, but that is not what we have here.

Case law shows what actual sex discrimination looks like. Laws discriminate by

sex when they (1) require that “males must be preferred to females” as estate

administrators (Reed v. Reed, 404 U.S. 71, 73 (1971)); (2) make the husband “head

and master” of property owned in community with his wife (Kirchberg v. Feenstra,

450 U.S. 455, 462 (1981)); (3) require parents to support boys until 21, but girls only


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until 18 (Stanton v. Stanton, 421 U.S. 7, 9-10 (1975)); (5) bar sale of 3.2% beer to

males under 21, but to females only under 18 (Craig v. Boren, 429 U.S. 190, 191-92

(1976)); (6) allow male service-members to claim wives as “dependents” without

showing actual financial dependence, but require female service-members to

provide proof to claim husbands as “dependents” (Frontiero v. Richardson, 411 U.S.

677, 678 (1973)); (7) exclude males from the sole state-supported nursing school

(Miss. Univ. for Women v. Hogan, 458 U.S. at 719); (8) exclude women from an elite

military training academy (and provided women with an inferior academy) (United

States v. Virginia, 518 U.S. at 547). In light of these instances of real sex

discrimination, “[c]ommon sense dictates” that Louisiana’s man-woman definition of

marriage “has nothing to do with gender-based prejudice or stereotypes, and …

cannot be subject to heightened scrutiny on that basis.” Bishop, 962 F.Supp.2d at

1286; see also, e.g., Sevcik v. Sandoval, 911 F.Supp.2d 996, 1005 (D. Nev. 2012)

(man-woman marriage laws “are not directed toward persons of any particular

gender, nor do they affect people of any particular gender disproportionately such

that a gender-based animus can reasonably be perceived”).

Plaintiffs’ theory is not helped by the argument that the laws in Loving v.

Virginia, 388 U.S. 1, discriminated “equally” against blacks and whites and yet

were treated as race discrimination. See, e.g., Sevcik, 911 F.Supp.2d at 1004-05

(considering and rejecting this argument). There was nothing “equal” about the

anti-miscegenation laws Loving struck down. Those laws, which “arose as an

incident to slavery,” 388 U.S. at 6, imposed a “sham equality that … was in


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substance anti-black legislation.” Hernandez, 855 N.E.2d at 11. They were

“measures designed to maintain White Supremacy.” Loving, 388 U.S. at 11; see also

Sevcik, 911 F.Supp.2d at 1005 (“In Loving, the elements of the disability were

different as between Caucasians and non-Caucasians, whereas here, the burden on

men and women is the same.”). Loving thus treated anti-miscegenation laws as

what they were: “invidious racial discrimination.” 388 U.S. at 11; see also Vill. of

Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 265 (1977)

(“Proof of racially discriminatory intent or purpose is required to show a violation of

the Equal Protection Clause.”). But Louisiana’s marriage laws are wholly different.

There is no indication that they have the purpose or effect of disadvantaging males

or females, and therefore under settled law they cannot be considered sex

discrimination under equal protection.

If Louisiana’s marriage laws must be characterized as “classifying” for purposes

of this case, then they classify by sexual preference. See, e.g., Bishop, 962 F.Supp.2d

at 1287 (“[i]nstead of gender-based discrimination … sexual orientation provides the

best descriptor for the class-based distinction being drawn” by a man-woman

definition of marriage); Sevick, 911 F.Supp.2d at 1005 (concluding that “the level of

scrutiny applicable to sexual-orientation-based distinctions applies”).8 This means

that Louisiana’s laws do not trigger the heightened scrutiny reserved for sex-based

classifications but are instead subject to rational basis review. See II.A.1, supra.

8 The most recent district court decision—while mistaken on many counts, see infra—correctly concludes that the man-woman marriage definition “does not prefer one gender over the other” and therefore does not engage in sex discrimination. See Latta v. Otter, __ F.Supp.2d __, 2014 WL 1909999, at *15 (D. Idaho May 13, 2014).


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C. Louisiana’s marriage laws satisfy rational basis review.

To prevail under rational basis, plaintiffs must show that Louisiana’s decision to

retain the man-woman definition of marriage in its Constitution is “so unrelated to

the achievement of any combination of legitimate purposes that [the Court] can only

conclude that [Louisiana’s] actions were irrational.” Doe v. Jindal, 851 F.Supp.2d

995, 1005-06 (E.D. La. 2012) (quotes omitted) (first brackets added); see also Def.

MSJ 11-12 (discussing rational basis review). Plaintiffs cannot do so.

First, Louisiana rationally defines civil marriage as a man-woman union

because one of its principal purposes is to link children to an intact family formed

by their biological parents. See Def. MSJ 12-17; see also, e.g., Hernandez, 855

N.E.2d at 21 (Graffeo, J., concurring) (“[A]n orderly society requires some

mechanism for coping with the fact that sexual intercourse … commonly results in

pregnancy and childbirth. The institution of marriage is that mechanism.”). That

purpose is amply displayed in Louisiana family law by a web of legal presumptions

linking marriage, biological parentage, and child protection. See Def. MSJ 13-14;

Wilkinson v. Wilkinson, 323 So.2d 120, 124 (La. 1975) (the “public policy of

Louisiana that every effort must be made to uphold the validity of marriages … is

closely intertwined with the presumption of legitimacy”). Louisiana’s marriage laws

are structured around the biological reality that only opposite-sex couples naturally

procreate and that most children are born from the union of opposite-sex couples.

See, e.g., Hernandez, 855 N.E.2d at 7 (because “it remains true that the vast

majority of children are born as a result of a sexual relationship between a man and

a woman,” a legislature “could find that an important function of marriage is to


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create stability and permanence in the relationships that cause children to be

born”). This is not remotely “irrational,” as if Louisiana had limited marriage to

right-handed people or barred it to red-heads. It is a sensible and unsurprising

recognition of biological reality. See, e.g. Nguyen v. I.N.S., 533 U.S. 53, 73 (2001)

(“To fail to acknowledge even our most basic biological differences … risks making

the guarantee of equal protection superficial, and so disserving it.”).9

Louisiana’s purpose in retaining the man-woman definition of marriage does not

depend on speculation that “heterosexual couples make decisions regarding

marriage and procreation based on the status or recognition of same-sex

marriages.” Pl. MSJ 22-23. Its policy depends on a far simpler rationale. Only man-

woman couples naturally procreate and the overwhelming majority of children are

born from man-woman unions; therefore, Louisiana “could choose to offer an

inducement—in the form of marriage and its attendant benefits—to [man-woman]

couples who make a solemn, long-term commitment to each other.” Hernandez, 855

N.E.2d at 7.10 To be sure, Louisiana could also choose to extend those benefits to

9 Louisiana’s marriage laws cannot be reduced to “[m]oral condemnation of same-sex couples and relationships.” Pl. MSJ 22; see, e.g., Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring) (“Unlike the moral disapproval of same-sex relations … other reasons exist to promote the institution of marriage beyond mere moral disapproval of the excluded group.”). Nor can the intentions of more than 600,000 voters who approved the 2004 amendment be reduced to the bizarre comments of one legislator. Pl. MSJ 22 n.16; see Forum for Equality PAC, 893 So.2d at 718, 733-37 (noting there were 619,908 votes for the amendment, and discussing house and senate committee hearings). 10 Louisiana need not justify its policy by evidence that intact biological families “promot[e] an optimal environment for child-raising.” Pl. MSJ 23. Louisiana’s citizens can seek to promote the stability of intact biological families without being second-guessed by “courtroom factfinding.” Heller v. Doe, 509 U.S. 312, 320 (1993) (quotes omitted). Nor must Louisiana’s citizens provide an evidentiary basis for their reservations about altering the definition of marriage. Cf. Schuette, 134 S. Ct. at 138 (voters may forbid affirmative action


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same-sex couples, as New York and 15 other states have done, if its citizens at some

point reach consensus about an “evolving understanding of the meaning of

equality.” Windsor, 133 S. Ct. at 2693. But merely because Louisiana—and 33 other

states—take a different view at present does not make them irrational. Such a

drastic conclusion would be “inconsistent with the underlying premises of a

responsible, functioning democracy.” Schuette, 134 S. Ct. at 1637.

Second, Louisiana placed its marriage definition in the state constitution to

ensure that a change as profound as altering the definition of marriage would occur

only through wide social consensus. Def. MSJ 17-20. Windsor itself recognized that

states act rationally—indeed, wisely—in doing so. With respect to a “far-reaching

matter” like same-sex marriage, Windsor emphasized that “[t]he dynamics of state

government in the federal system are to allow the formation of consensus.” 133 S.

Ct. at 2692-93; see also id. at 2689 (noting that New York adopted same-sex

marriage only “[a]fter a statewide deliberative process that enable its citizens to

discuss and weigh arguments for and against same-sex marriage”). Windsor did not

establish a one-way ratchet that allows New York citizens to reach one consensus

on same-sex marriage, but denies Louisiana citizens the right to reach another.

Both states’ decisions were grounded on the “community’s considered perspective on

the historical roots of the institution of marriage,” and both were “without doubt a

proper exercise of … sovereign authority within our federal system.” Id. To

invalidate the decision of Louisiana’s citizens on such a profound matter would be

based on fear that it would “become itself a source of … resentments and hostilities,” and “[w]hether those adverse results would follow is, and should be, the subject of debate”).


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“demeaning to the democratic process.” Schuette, 134 S. Ct. at 1637.

***

In sum, Louisiana’s marriage laws trigger rational basis review, not heightened

scrutiny, under binding precedent that Windsor reaffirmed. Because Louisiana’s

laws rationally further important state interests in (1) linking children with intact

families formed by their biological parents, and (2) ensuring that a profound

alteration to the definition of marriage occurs only through wide social consensus,

the Court should reject plaintiffs’ equal protection claims.

III. LOUISIANA’S MARRIAGE LAWS SATISFY THE DUE PROCESS CLAUSE.

Plaintiffs also claim that Louisiana’s marriage laws burden their “fundamental

right to marry,” Pl. MSJ 17-19, and their “fundamental right to parental authority,”

id. at 20. These claims founder on the settled rule that “[t]o establish a substantive

due process violation, a plaintiff must first both carefully describe that right and

establish it as ‘deeply rooted in this Nation’s history and tradition.’” Malagon de

Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (quoting Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997)) (quotes omitted); see Def. MSJ 20-24.11

First, a “careful description” of the asserted right must include the fact that,

11 Plaintiffs’ claimed “right to parental authority” is subject to the same Glucksberg standard as the claimed “right to marry.” See Troxel v. Granville, 530 U.S. 57, 65 (2000) (relying on Glucksberg). Plaintiffs also assert a “right to remain married,” Pl. MSJ 19, but the only case they cite purporting to recognize such a right is the recent decision in Obergefell v. Wymyslo, 962 F.Supp.2d 968, 979 (S.D. Ohio 2013). Obergefell incorrectly created this right from Lawrence v. Texas, which expressly disclaimed it was saying anything about “whether the government must give formal recognition to any relationship that homosexual persons may enter.” 539 U.S. at 578. Furthermore, the “right to remain married,” as asserted here, appears identical to a right to interstate recognition of marriage, which finds no support in the Constitution. See Def. MSJ 7-11.


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here, it involves the right to marry someone of the same sex. See Glucksberg, 521

U.S. at 722 (noting the Court’s “tradition of carefully formulating the interest at

stake in substantive-due-process cases”).12 Plaintiffs cannot simply invoke a

generalized “right to marry”; they must be “more precise.” See id. (rejecting “right to

die” as insufficiently “precise”, and instead describing asserted right as the “right to

commit suicide which itself includes assistance in doing so”).13 Relying on a generic

“right to marry” proves too much: no one would say, for instance, that a state

burdens the “right to marry” by not allowing someone to wed her first cousin. In

that hypothetical case, a “careful description” of the asserted right would include

the consanguinity of the proposed spouse. Just so here: the right plaintiffs seek is

not simply to “marry” but to marry someone of the same sex. The right has not been

“carefully” described if the description omits that essential feature. Windsor

confirmed this: “marriage between a man and a woman no doubt had been thought

of by most people as essential to the very definition of that term and to its role and

function throughout the history of civilization.” 133 S. Ct. at 2689 (emphasis added).

Second, Windsor also forecloses the argument that a right to same-sex marriage

is “objectively, deeply rooted” in our traditions. Windsor observed that New York’s 12 See also, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (before “break[ing] new ground” in substantive due process, Court must “focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake”) 13 See also, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (rejecting “freedom from physical restraint,” and describing right as “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution”); Collins, 503 U.S. at 125 (rejecting due process right to have employers provide employees with a “safe working environment” as insufficiently similar to cases recognizing due process right to have state “take care of those who have already been deprived of their liberty”).


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recognition and adoption of same-sex marriage involved “a new perspective, a new

insight,” remarking that:

… until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and a woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.

133 S. Ct. at 2689. Given that fact, the right to enter into a same-sex marriage

cannot be one “deeply rooted in our Nation’s history and tradition.” Glucksberg, 521

U.S. at 720-21; see also Hernandez, 855 N.E.2d at 9 (“The right to marry someone of

the same sex … is not ‘deeply rooted’; it has not even been asserted until relatively

recent times.”). That does not disparage same-sex couples who wish to marry. It

merely says courts should not place this brand new development “outside the arena

of public debate and legislative action” by decreeing it a “fundamental” right. Id. at

720 (quoting Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).

Plaintiffs rely on “right to marry” cases such as Zablocki, Turner, and Loving, Pl.

MSJ 17-18, but those cases do not suggest anything like a right to marry someone of

the same sex. They stand for the proposition that states burden the right to marry

by, for instance: (1) barring marriage to people who shirk child support obligations

(Zablocki v. Redhail, 434 U.S. 374, 385-87 (1978)); (2) barring marriages by

prisoners not serving a life sentence (Turner v. Safely, 482 U.S. 78, 95-98 (1987));

and (3) barring marriage based on invidious racial classifications (Loving, 388 U.S.

at 11). Obviously, the “right to marry” recognized in these cases was shaped by their

context. See, e.g., Collins, 503 U.S. at 125 (in defining substantive due-process


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21

rights, courts must “focus on the allegations in the complaint to determine how

petitioner describes the constitutional right at stake”). But none of those cases

purport to constitutionalize state marriage regulation or disrupt the vast bulk of

domestic relations law. See, e.g., Zablocki, 434 U.S. at 386 (“By reaffirming the

fundamental character of the right to marry, we do not mean to suggest that every

state regulation which relates in any way to the incidents of or prerequisites for

marriage must be subjected to rigorous scrutiny.”).14 No one argues, for instance,

that these decisions establish a “right to marry” without a ceremony or the “right to

marry” one’s first cousin. States may, and do, differ on these matters. See, e.g.,

Windsor, 133 S. Ct. at 2691-92 (noting that “most States permit first cousins to

marry, but a handful … prohibit the practice”) (citations omitted).

In the same way, none of these cases purport to establish a “right to marry”

someone of the same sex. Loving, in particular, could not have done so: a mere five

years after Loving, the Supreme Court summarily rejected “for want of a

substantial federal question” the claim that the Constitution requires a state to

recognize same-sex marriage. Baker v. Nelson, 409 U.S. 810 (1972). But if any of

these cases established a right to same-sex marriage, surely Windsor would have

said so. To the contrary, Windsor said that “marriage between a man and a woman

no doubt had been thought of by most people as essential to the very definition of 14 In light of that disclaimer, it is incorrect to say that cases like Zablocki “recognized an unembellished right to marry.” Latta, 2014 WL 1909999, at *12. While the right recognized by the Supreme Court’s cases “transcends one’s race, confinement to prison, or ability to support children,” id. at *13, no case says the right “transcends” the sex of the proposed spouse. Windsor confirmed the opposite by observing that the man-woman aspect of marriage was historically considered “as essential to the very definition of … [marriage].” 133 S. Ct. at 2689.


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that term and to its role and function throughout the history of civilization.” 133 S.

Ct. at 2689. The “right to marry” cases plaintiffs cite have said similar things about

marriage. Zablocki, for example, said the right involves the “decision to marry and

raise a child in a traditional family setting” and “the right to procreate.” 434 U.S. at

386.15 These statements in Windsor, Zablocki, and other cases do not mean that the

Constitution contains its own definition of marriage. But they foreclose the notion—

necessary to plaintiffs’ due process claims—that a right to same-sex marriage is

“deeply rooted in our Nation’s history and tradition.” Glucksberg, 521 U.S. at 720.

Finally, plaintiffs rely on right to privacy cases. Pl. MSJ 17-18 (citing Planned

Parenthood of Pa. v. Casey, 505 U.S. 833, 851 (1992); Griswold v. Connecticut, 381

U.S. 479, 486 (1965); Lawrence v. Texas, 539 U.S. 558, 578 (2003)). Plaintiffs over-

read these decisions, which only protect certain private choices about sex and

procreation. See, e.g., Lawrence, 539 U.S. at 565 (describing Griswold as addressing

“the right to make certain decisions regarding sexual conduct”). But they do not

establish a right to compel official recognition of relationships formed as a result of

those private choices.16 Lawrence—the case closest to plaintiffs’ claims—explicitly

noted this limitation. While recognizing that a state could not punish consensual 15 See also, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“[m]arriage and procreation are fundamental to the very existence and survival of the race”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (due process includes right “to marry, establish a home and bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage “is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress”). 16 See, e.g., Hernandez, 855 N.E.2d at 10 (“Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against state intrusion on intimate, private activity. They seek from the courts access to a state-conferred benefit that the Legislature has rationally limited to opposite-sex couples.”).


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same-sex relations, Lawrence underscored that it “d[id] not involve whether the

government must give formal recognition to any relationship that homosexual

persons may enter.” 539 U.S. at 578; see also id. at 567 (observing that the Texas

law at issue “seek[s] to control a personal relationship that, whether or not entitled

to formal recognition in the law, is within the liberty of persons to choose without

being punished as criminals) (emphasis added). Plaintiffs rely heavily on Lawrence,

Pl. MSJ 18, but Lawrence disclaims the reading plaintiffs would impose on it—

namely, that the sexual privacy it protects compels recognition of same-sex

marriage. Lawrence does no such thing.17

CONCLUSION

The Court should (1) deny plaintiffs’ motion for partial summary judgment (Doc.

86), and (2) grant defendants’ motion for partial summary judgment and motion to

dismiss (Doc. 84).


s/ S. Kyle Duncan S. Kyle Duncan, 25038, T.A. Special Assistant Attorney General Louisiana Department of Justice P.O. Box 94005 Baton Rouge, LA 70804 Phone: (202) 714-9492 Fax: (225) 326-6098 [email protected]


17 A district court recently announced that “Lawrence unequivocally cements marriage as among the constitutionally protected liberties shared by homosexual and heterosexual persons alike.” Latta, 2014 WL 1909999, at *13. That is wrong. Lawrence “unequivocally” disclaimed that it was saying anything about “whether the government must give formal recognition to any relationship that homosexual persons may enter.” 539 U.S. at 578.


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I hereby certify that on May 19, 2014, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will be electronically served on all counsel of record.

/s S. Kyle Duncan S. Kyle Duncan Attorney for Defendants


14-31037.1481

TABLE OF CONTENTS Introduction .................................................................................................................... 1 Argument ........................................................................................................................ 2

I. Plaintiffs would nullify Louisiana’s authority to define marriage. ................... 2

II. Louisiana’s marriage laws satisfy the Equal Protection Clause. ...................... 6

A. Sexual orientation does not trigger heightened scrutiny. ............................ 6

1. Windsor reaffirms binding precedent that applies rational basis review to sexual-orientation classifications. ............................................ 6

2. Louisiana’s marriage laws are not “unusual” but instead follow

longstanding conflicts-of-law rules. .......................................................... 9 3. Binding precedent forecloses plaintiffs’ suspect-class argument. ........ 10

B. Louisiana’s marriage laws do not discriminate based on sex. ................... 11 C. Louisiana’s marriage laws satisfy rational basis review. ........................... 15

III. Louisiana’s marriage laws satisfy the Due Process Clause. ......................... 18

Conclusion ..................................................................................................................... 23 Certificate of Service ..................................................................................................... 24


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TABLE OF AUTHORITIES Cases Adar v. Smith, 639 F.3d 146 (5th Cir. 2011) ..................................................................................... 1 Baker v. Gen. Motors Corp., 522 U.S. 222 (1998) ................................................................................................... 3 Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................. 21 Baker v. State, 744 A.2d 864 (Vt. 1999) ........................................................................................... 10 Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014) ............................................................. 12, 13 Bloom v. Willis, 60 So.2d 415 (La. 1952) ............................................................................................. 9 Bond v. United States, 131 S. Ct. 2355 (2011) ............................................................................................... 4 Brinson v. Brinson, 96 So.2d 653 (La. 1957) ............................................................................................. 9 Chivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La. App. 3 Cir. 1964) ...................................................................... 10 City of Cleburne v. Cleburne Living Ctr., Inc., 472 U.S. 432 (1985) ................................................................................................... 8 Collins v. City of Harker Heights, 503 U.S. 115 (1992) ........................................................................................... 19, 20 Craig v. Boren, 429 U.S. 190 (1976) ................................................................................................. 13 Doe v. Jindal, 851 F.Supp.2d 995 (E.D. La. 2012) ......................................................................... 15 Dred Scott v. Sandford, 60 U.S. 393 (1856) ..................................................................................................... 6


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3

Fritsche v. Vermilion Parish Hosp. Serv. Dist. No. 2, 2004-1192 (La. App. 3 Cir. 2/2/05); 893 So.2d 935 ................................................. 10 Frontiero v. Richardson, 411 U.S. 677 (1973) ................................................................................................. 13 Forum for Equality PAC v. McKeithen, 2004-2477 (La. 1/19/05); 893 So.2d 715 ............................................................ 10, 16 Ghassemi v. Ghassemi, 2007-1927 (La. App. 1 Cir. 10/15/08); 998 So.2d 731 ......................................... 9, 10 Griswold v. Connecticut, 381 U.S. 479 (1965) ................................................................................................. 22 Heller v. Doe, 509 U.S. 312 (1993) ................................................................................................. 16 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ................................................................................ passim In re Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004) .................................................................................. 10 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ............................................................................... 7, 11 Kirchberg v. Feenstra, 450 U.S. 455 (1981) ................................................................................................. 12 Latta v. Otter, __ F.Supp.2d __, 2014 WL 1909999 (D. Idaho May 13, 2014) ................... 14, 21, 23 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................... 16, 18, 22, 23 Louisville Gas & Elec. v. Coleman, 277 U.S. 32 (1928) ..................................................................................................... 7 Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................ 5-6, 13, 14, 20, 21


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4

Mahone v. Addicks Utility Dist., 836 F.2d 921 (5th Cir. 1988) ..................................................................................... 8 Maynard v. Hill, 125 U.S. 190 (1888) ................................................................................................. 22 Meyer v. Nebraska, 262 U.S. 390 (1923) ................................................................................................. 22 Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2006) ................................................................................... 18 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ............................................................................................. 9, 13 Moore v. East Cleveland, 431 U.S. 494 (1977) ................................................................................................. 20 Nguyen v. I.N.S., 533 U.S. 53 (2001) ................................................................................................... 16 Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013) ...................................................................... 18 Personnel Admin. of Mass. v. Feeney, 442 U.S. 226 (1979) ................................................................................................. 12 Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992) ................................................................................................. 22 Reed v. Reed, 404 U.S. 71 (1971) ................................................................................................... 12 Reno v. Flores, 507 U.S. 292 (1993) ................................................................................................. 19 Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989) ................................................................................................... 7 Romer v. Evans, 517 U.S. 620 (1996) ......................................................................................... 7, 8, 11 Schuette v. BAMN, 134 S. Ct. 1623 (2014) ...................................................................... 1, 3, 4, 16-17, 18


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Sevcik v. Sandoval, 911 F.Supp.2d 996 (D. Nev. 2012) .................................................................... 13, 14 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ................................................................................................. 22 Stanton v. Stanton, 421 U.S. 7 (1975) .................................................................................................... 13 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013) ..................................................................................... 8 Succession of Caballero v. Executor, 24 La. Ann. 573 (1872) ............................................................................................ 10 Succession of Marinoni, 148 So. 888 (La. 1933) ............................................................................................... 9 Troxel v. Granville, 530 U.S. 57 (2000) ................................................................................................... 18 Turner v. Safely, 482 U.S. 78 (1987) ................................................................................................... 20 United States ex rel. Modianos v. Tuttle, 12 F.2d 927 (E.D. La. 1925) ................................................................................. 9-10 United States v. Virginia, 518 U.S. 515 (1996) ....................................................................................... 8, 12, 13 United States v. Windsor, 133 S. Ct. 2675 (2013) ..................................................................................... passim Vill. of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252 (1977) ................................................................................................. 14 Washington v. Glucksberg, 521 U.S. 702 (1997) ..................................................................................... 18, 19, 22 Wilkinson v. Wilkinson, 323 So.2d 120 (La. 1975) ......................................................................................... 15


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6

Zablocki v. Redhail, 434 U.S. 374 (1978) ..................................................................................... 20, 21, 22 Statutes Defense of Marriage Act, 110 Stat. 2419 .................................................................................................. passim 28 U.S.C. §1738C ............................................................................................................ 3 LA. CIV. CODE art. 3520 ..................................................................................... 1-2, 9, 10 LA. R.S. 47:294 ................................................................................................................ 2 Constitutional Provisions U.S. CONST. art. IV .......................................................................................................... 3 U.S. CONST. amend. V ..................................................................................................... 2 U.S. CONST. amend. XIV ....................................................................................... passim LA. CONST. art. XII, § 15 ................................................................................................. 1 Other Authorities IRS Revenue Ruling 2013-17 ......................................................................................... 2 Louisiana Revenue Information Bulletin No. 13-024 ................................................... 2 Merits Brief for United States in United States v. Windsor (No. 12-307) ................. 11 Restatement (2d) Conflicts of Laws § 284 ................................................................... 10


14-31037.1487




Defendants

CIVIL ACTION



REF: ALL CASES

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION

Plaintiffs say the United States Constitution requires Louisiana to recognize

same-sex marriage. But, just last year, the Supreme Court said each state’s citizens

may decide that matter for themselves. United States v. Windsor, 133 S. Ct. 2675

(2013). Louisiana’s citizens did so in 2004. The idea that the Constitution overrides

their decision “is demeaning to the democratic process,” Schuette v. BAMN, 134 S.

Ct. 1623, 1637 (2014) (op. of Kennedy, J.), and should be rejected.

Based on the parties’ submissions, there are no genuine disputes as to any

material facts.1 The parties agree that Louisiana law prevents defendants from

recognizing plaintiffs’ same-sex marriages. LA. CONST. art. XII, § 15; LA. CIV. CODE

1 Defendants do not contest plaintiffs’ standing. See Windsor, 133 S. Ct. at 2685 (plaintiff “suffered a redressable injury” when made to pay taxes under allegedly invalid law); Adar v. Smith, 639 F.3d 146, 150 (5th Cir. 2011) (en banc) (Appellees had standing when “denied a revised birth certificate containing [their] names … as parents”). Plaintiffs’ full faith and credit claim, however, should be dismissed for failure to state a claim. Def. MSJ 10-11.


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art. 3520(B).2 The Court can decide the constitutional recognition issues as a matter

of law. Therefore, defendants ask the Court to: (1) deny plaintiffs’ partial motion for

summary judgment (Doc. 86), and (2) grant defendants’ partial motion for summary


ARGUMENT


Plaintiffs’ equal protection and due process claims fail on their own terms. See II,

III, infra. They also fail because they would nullify Louisiana’s “historic and

essential authority to define the marital relation.” Windsor, 133 S. Ct. at 2692. That

authority was of “central relevance,” id., to the Supreme Court’s decision last year

invalidating the federal marriage definition in DOMA section 3. The Court found

section 3 violated the Fifth Amendment rights of same-sex couples lawfully married

under New York law because of section 3’s “unusual deviation from the usual

tradition of recognizing and accepting state definitions of marriage.” Id. at 2693.

New York’s decision to “recognize and then to allow same-sex marriages” was,

Windsor underscored, “without doubt a proper exercise of its sovereign authority

within our federal system.” Id. at 2692. Windsor thus affirms that states act within

2 See Pl. MSJ (Doc. 86-1) 4; Pl. Stmt. (Doc. 86-4) 2; Def. MSJ (Doc. 84-1) 1-2; Def. Stmt. (Doc. 84-3) 1-3. Defendants disagree, however, with some of plaintiffs’ characterizations of Louisiana law. For instance, it is incorrect to say that Louisiana Revenue Information Bulletin No. 13-024 “will not follow” IRS Revenue Ruling 2013-17, Doc. 86-4 ¶9, since the IRS ruling applies only to the federal government. Doc. 84-4 (Barfield aff.) ¶¶10, 12. It is also incorrect to say that the Louisiana bulletin and tax forms are “contrary to La. R.S. 47:294,” Doc. 86-4 ¶12, since the statute must be construed in light of the Louisiana Constitution. Doc. 84-4 (Barfield aff.) ¶¶7-12. But these are legal, not factual disagreements, and they do not prevent the Court from deciding the constitutional issues as a matter of law.


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3

their authority when they democratically decide whether to recognize same-sex

marriage. See, e.g., id. at 2692-93 (observing “[t]he dynamics of state government in

the federal system are to allow the formation of consensus” respecting a “far-

reaching” matter like same-sex marriage). In contravention of Windsor, plaintiffs

would constitutionalize the issue and nullify Louisiana’s authority to decide it.

Plaintiffs’ claims should fail for that reason alone. See Def. MSJ (Doc. 84-1) 3-7.3

Last month, the Supreme Court reinforced Windsor’s respect for state authority

in Schuette, which rejected an equal protection challenge to a Michigan

constitutional amendment forbidding affirmative action in public universities. The

Court found that “Michigan voters [had] exercised their privilege to enact [the

amendment] as a basic exercise of their democratic power.” 134 S. Ct. at 1636 (op. of

Kennedy, J.). Recognizing the amendment reflected “the national dialogue

regarding the wisdom and practicality of [affirmative action],” Schuette held that

“courts may not disempower the voters from choosing which path to follow.” Id. at

1631, 1635. To deem affirmative action too “sensitive,” “complex,” or “delicate” for

voters would be “an unprecedented restriction on the exercise of a fundamental

right held not just by one person but by all in common.” Id. at 1637. “It is

demeaning to the democratic process,” the Court said, “to presume that the voters

are not capable of deciding an issue of this sensitivity on decent and rational

3 Their claims also fail in light of the Faith and Credit Clause, which does not require a state to recognize out-of-state marriages. Def. MSJ 7-10; Baker v. Gen. Motors Corp., 522 U.S. 222, 232-33 (1998) (full faith and credit “does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate”) (citation omitted). Congress confirmed that principle by enacting DOMA section 2. Def. MSJ 9-10 (discussing 28 U.S.C. § 1738C).


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grounds,” and even if debates like these “may shade into rancor … that does not

justify removing [them] from the voters’ reach.” Id. at 1637, 1638.

Schuette speaks directly to the issue of state authority here. As with affirmative

action, there is an ongoing “national dialogue regarding … [same-sex marriage],”

and “courts may not disempower the voters from choosing which path to follow.” Id.

at 1631, 1635. As with affirmative action, it would be “demeaning to the democratic

process to presume … voters are not capable of deciding an issue of this sensitivity

on decent and rational grounds.” Id. at 1637. Indeed, it is the responsibility of

voters—not the courts—to decide the issue, because “[f]reedom embraces the right,

indeed the duty, to engage in a rational, civic discourse in order to determine how

best to form a consensus to shape the destiny of the Nation and its people.” Id; cf.

Windsor, 133 S. Ct. at 2692 (“In acting first to recognize and then to allow same sex

marriages, New York was responding ‘to the initiative of those who [sought] a voice

in shaping the destiny of their own times.’”) (quoting Bond v. United States, 131 S.

Ct. 2355, 2359 (2011)). Schuette thus reinforces Windsor’s point that a state’s

decision to recognize same-sex marriage, or not to, is “without doubt a proper

exercise of its sovereign authority within our federal system.” 133 S. Ct. at 2692.

Louisiana’s voters spoke to the issue in 2004, as New York’s voters did in 2011.

With respect to the validity of that sovereign decision, Windsor and Schuette speak

in unison: “There is no authority in the Constitution of the United States or in [the

Supreme] Court’s precedents for the Judiciary to set aside [the] laws that commit

this policy determination to the voters.” Schuette, 134 S. Ct. at 1638.


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While noting Windsor’s “concern” for “the traditional State prerogative to define

marriage within its borders,” plaintiffs assert that, at bottom, “Windsor was an

equal-protection and due-process case, not a federalism case.” Pl. MSJ 24. This

radically oversimplifies Windsor, in which federalism and individual rights worked

hand-in-glove. Windsor ruled DOMA section 3 was a “discrimination[ ] of an

unusual character” precisely because it was an “unusual deviation from the usual

tradition of recognizing and accepting state definitions of marriage.” 133 S. Ct. at

2693. To be sure, the Court did not ground its decision solely in federalism, because

it recognized a “limited” federal authority over marriage. See id. at 2690 (noting

“discrete” legislative examples that “establish the constitutionality of limited federal

laws that regulate the meaning of marriage” for federal purposes). But that does not

change the fact that Windsor’s holding turned on section 3’s broad usurpation of

“the State’s power in defining the marital relation.” Id. at 2692. That power, which

the Court spent nine paragraphs discussing, was not “unnecessary” to the decision.

Pl MSJ 24. To the contrary, the Court said that, “[i]n order to assess the validity of

[section 3] … it is necessary to discuss the extent of the state power and authority

over marriage as a matter of history and tradition,” 133 S. Ct. at 2691, and

concluded that “[t]he State’s power in defining the marital relation is of central

relevance in this case,” id. at 2692 (emphases added).

Unable to erase Windsor’s obvious grounding in federalism, plaintiffs instead

raise Loving v. Virginia, 388 U.S. 1 (1967), arguing that Virginia “advanced a

federalism argument” in that case too. Pl. MSJ (Doc. 86-1) 24. That is a smoke-


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6

screen. In Loving, Virginia vainly attempted to use federalism to justify “invidious

racial discrimination” that violated the “clear and central purpose of the Fourteenth

Amendment” and triggered strict scrutiny. Loving, 388 U.S. at 11, 10. This case, by

contrast, involves a novel right which no state had even recognized ten years ago

and which 34 states do not recognize today, and a classification which triggers only

rational basis review. See II.A, infra. The fact that the Loving defendants invoked

federalism to justify white supremacy laws has nothing to do with Louisiana’s

federalism argument in this case. One might as well say that the fact that the

plaintiffs in Dred Scott v. Sandford invoked due process to justify slavery should

count against plaintiffs’ due process arguments here.4 That argument would be just

as baseless as plaintiffs’ Loving argument.

II. LOUISIANA’S MARRIAGE LAWS SATISFY THE EQUAL PROTECTION CLAUSE.

A. Sexual orientation does not trigger heightened scrutiny.

Plaintiffs spend much of their argument urging the Court to apply heightened

scrutiny. Pl. MSJ 10-16. They rely on Windsor and, alternatively, on the traditional

suspect-class factors. But binding precedent subjects Louisiana’s marriage laws

only to rational basis review, which they satisfy. See Def. MSJ 12-20.

1. Windsor reaffirms binding precedent that applies rational basis review to sexual-orientation classifications.

As plaintiffs concede, “[t]he Fifth Circuit has applied the lowest level of equal

4 See Dred Scott v. Sandford, 60 U.S. 393, 450 (1856) (reasoning that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, … could hardly be dignified with the name of due process of law”); cf. id. at 626 (Curtis, J., dissenting) (“Nor, in my judgment, will the position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, bear examination.”).


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protection scrutiny, rational basis, to sexual-orientation discrimination.” Pl. MSJ 11

(citing Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)); see also Def. MSJ 11

n.7 (“[n]ine other circuits agree”). Johnson remains good law: it followed the

Supreme Court’s decision in Romer v. Evans, which applied rational basis review to

a sexual-orientation classification in the Colorado Constitution. See Romer, 517 U.S.

620, 633 (1996) (asking whether Amendment 2 “bear[s] a rational relationship to an

independent and legitimate legislative end”). Windsor expressly reaffirmed Romer.

See Windsor, 133 S. Ct. at 2692 (relying on and quoting Romer, 517 U.S. at 633).

Unless and until the Supreme Court demands heightened scrutiny for sexual

orientation, lower courts must apply rational basis under Romer. See, e.g.,

Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“the

Court of Appeals should follow the case which directly controls, leaving to [the

Supreme] Court the prerogative of overruling its own decisions”).

Contrary to plaintiffs’ argument, Pl. MSJ 11, Windsor did not mandate

heightened scrutiny when it said that “‘[d]iscriminations of an unusual character

especially suggest careful consideration to determine whether they are obnoxious to

the constitutional provision.’” 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633).

That language from Windsor could not possibly require heightened scrutiny: it is a

quotation from Romer, which applied rational basis.5 Moreover, plaintiffs

misunderstand Windsor’s point. Section 3 of DOMA was “unusual,” not because it

5 Furthermore, Romer drew this “careful consideration” language from a case invalidating a state tax under rational basis. See Louisville Gas & Elec. v. Coleman, 277 U.S. 32, 37-38 (1928) (tax must “bear[ ] a reasonable and just relation to the act in respect to which the classification is proposed”) (quotes omitted).


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classified by sexual orientation, but because it “depart[ed] from [the] history and

tradition of [federal] reliance on state law to define marriage.” Windsor, 133 S. Ct.

at 2692. Louisiana’s marriage laws are the opposite of section 3: far from a novel

intrusion into domestic relations law, they instead fall squarely within Louisiana’s

“historic and essential authority to define the marital relation.” Id.

The Court should not follow the Ninth Circuit’s SmithKline decision, which

misinterpreted Windsor. See Pl. MSJ 11-13 (relying on SmithKline Beecham Corp.

v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013)). Windsor found DOMA section 3 was

actually motivated by an “illegitimate purpose,” see 133 S. Ct. at 2696, contravening

a basic requirement of rational basis review. See, e.g., Mahone v. Addicks Utility

Dist., 836 F.2d 921, 933 (5th Cir. 1988) (classification passes rational basis “if …

rationally related to a legitimate state interest”) (citing City of Cleburne v. Cleburne

Living Ctr., Inc., 472 U.S. 432, 439-40 (1985)). This is the same rational basis

review applied in Romer. See 517 U.S. at 632 (explaining, “[i]n the ordinary case, a

law will be sustained if it can be said to advance a legitimate government interest”).

Nowhere does Windsor say it overruled Romer and established a new heightened

scrutiny standard for sexual-orientation, and the Ninth Circuit was mistaken to

read such an intent into Windsor. (Moreover, the Ninth Circuit’s decision is

currently subject to a sua sponte en banc call, see Def. MSJ 11 n.7).

Finally, common-sense says Windsor did not adopt heightened scrutiny.

Heightened scrutiny involves a distinct formula. See, e.g., United States v. Virginia,

518 U.S. 515, 532-33 (1996) (under heightened scrutiny, state bears “demanding”


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9

burden of showing an “exceedingly persuasive” justification, namely that the

“classification serves ‘important governmental objectives and that the

discriminatory means employed’ are ‘substantially related to the achievement of

those objectives’”) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724

(1982)). The Windsor opinion contains no hint of that formula.

2. Louisiana’s marriage laws are not “unusual” but instead follow longstanding conflicts-of-law rules.

Plaintiffs’ alternative argument for heightened scrutiny under Windsor contends

that Louisiana’s non-recognition of same-sex marriage is an unusual deviation from

its historic practice. They claim that, “[j]ust as” section 3 of DOMA departed from

federal reliance on state marriage law, “so too” do Louisiana’s marriage laws

“depart[ ] from Louisiana history and tradition of upholding the validity of out-of-

state marriages.” Pl. MSJ 11. Plaintiffs misunderstand Louisiana law.

The rule in Louisiana has always been that it will recognize out-of-state

marriages “as a matter of comity,” but this “spirit of comity … does not require

[Louisiana] to recognize a marriage which is contrary to its own public policy.”

Brinson v. Brinson, 96 So.2d 653, 659 (La. 1957) (refusing to recognize fraudulent

common-law marriage from Mississippi); see also, e.g., Bloom v. Willis, 60 So.2d 415,

417 (La. 1952) (recognizing another state’s non-ceremonial marriage “out of comity”)

(citing Succession of Marinoni, 148 So. 888 (La. 1933)). Plaintiffs’ own cases

recognize this long-standing rule,6 which was codified in Civil Code article 3520.

6 See Pl. MSJ 4-5; see, e.g., Ghassemi v. Ghassemi, 2007-1927, p. 11 n.15 (La. App. 1 Cir. 10/15/08), 998 So.2d 731, 739 n.15 (traditional rule required court to determine “whether recognizing [the foreign marriage] would violate the public policy of [Louisiana]”); United


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See, e.g., Ghassemi, 998 So.2d at 739 n.15 (article 3520 “essentially codified the

previous comity analysis”); cf. Restatement (2d) Conflicts of Laws § 284 cmt. c

(noting rule that “[a] state will not give a particular incident to a foreign marriage

when to do so would be contrary to its strong local policy”).

Consequently, there is nothing “unusual” about Louisiana’s decision to deny

recognition to same-sex marriages on strong public policy grounds. That decision

falls squarely within Louisiana’s longstanding conflicts-of-law approach. Nor is it

unusual that Louisiana addressed the issue recently, and not before: the issue arose

only in the last two decades. See, e.g., Baker v. State, 744 A.2d 864, 868 (Vt. 1999)

(Vermont Constitution requires state “to extend to same-sex couples the common

benefits and protections that flow from marriage under Vermont law”).7

3. Binding precedent forecloses plaintiffs’ suspect-class argument.

Alternatively, plaintiffs claim that sexual orientation qualifies as a “suspect” or

States ex rel. Modianos v. Tuttle, 12 F.2d 927, 928 (E.D. La. 1925) (noting “well-recognized exception” to validity of foreign marriages where “the law-making authority has declared [the marriage] shall not be allowed any validity as a matter of general policy”); Succession of Caballero v. Executor, 24 La. Ann. 573, 575 (1872) (noting “well settled” rule denying foreign marriages recognition for “reasons of public policy”). A few Louisiana appellate courts misstate the rule as one of “full faith and credit,” see, e.g., Fritsche v. Vermilion Parish Hosp. Serv. Dist. No. 2, 2004-1192, p. 3 (La. App. 3 Cir. 2/2/05), 893 So.2d 935, 937-38), but the vast weight of authority correctly identifies the rule purely as one of comity. See, e.g., Chivers v. Couch Motor Lines, Inc., 159 So.2d 544, 549 (La. App. 3 Cir. 1964) (Tate, J.) (relying on traditional rule in Brinson and Marinoni, supra). In any event, article 3520 plainly codifies the rule as one of comity. See LA. CIV. CODE art. 3520 cmt. b (presumptive validity of foreign marriage may be defeated by showing applicable law “would invalidate the marriage for reasons of ‘a strong public policy’”).

7 See also, e.g., In re Opinions of the Justices, 802 N.E.2d 565, 569-72 (Mass. 2004) (allowing civil unions but not marriage for same-sex couples “violates the equal protection and due process requirements” of Massachusetts Constitution); and see generally Forum for Equality PAC v. McKeithen, 2004-2477, pp. 26-28 (La. 1/19/05); 893 So.2d 715, 733-34 (discussing motivation for enacting Louisiana Constitution article XII, § 15).


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11

“quasi-suspect” class under traditional suspect-class factors. Pl. MSJ 13-15. This

argument, however, is foreclosed by binding precedent—Johnson and Romer—that

sexual-orientation classifications merit rational basis review only. As explained

above, Windsor reaffirmed this precedent. See II.A.1, supra.

Indeed, in Windsor the Supreme Court had ample opportunity to adopt this

suspect-class rationale, and yet did not. For instance, the Second Circuit opinion

under review elaborately analyzed the suspect-class factors and applied heightened

scrutiny. Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012). In the

Supreme Court, the Solicitor General spent nineteen pages making the same

argument. Merits Br. for United States at 16-36, United States v. Windsor, 133 S.

Ct. 2675 (2013) (No. 12-307). Finally, while the case was in the lower courts, the

Attorney General had announced the President’s view that “‘classifications based on

sexual orientation should be subject to a heightened standard of scrutiny,’” leading

the Justice Department to stop defending DOMA. Windsor, 133 S. Ct. at 2683

(quoting Attorney General letter). Despite all this, the Supreme Court did not

analyze the suspect-class factors and adopt heightened scrutiny. Surely, if the Court

had intended to do so—and in the process overrule Romer and reject nine contrary

circuit decisions applying rational basis review—it would have said so.

B. Louisiana’s marriage laws do not discriminate based on sex.

Alternatively, plaintiffs claim Louisiana’s marriage laws trigger heightened

scrutiny because they discriminate based on sex. They argue Louisiana does not

recognize their marriages solely “[b]ecause each [p]laintiff is married to a person of

the same sex, rather than a person of the opposite sex,” Pl. MSJ 15, constituting


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12

sex-based discrimination under equal protection. Plaintiffs are mistaken.

Louisiana’s marriage laws do not engage in sex discrimination because they do

not advantage one sex over the other. See, e.g., Personnel Admin. of Mass. v. Feeney,

442 U.S. 226, 273 (1979) (sex discrimination occurs when laws are “overtly or

covertly designed to prefer males over females”); United States v. Virginia, 518 U.S.

at 532 (the Court has “carefully inspected official action that closes a door or denies

opportunity to women (or to men)”). With respect to marriage, Louisiana treats men

and women exactly the same: it “does not draw any distinctions between same-sex

male couples and same-sex female couples, does not place any disproportionate

burdens on men and women, and does not draw upon stereotypes applicable only to

male or female couples.” Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252,

1286 (N.D. Okla. 2014). It would be a different matter if Louisiana recognized out-

of-state marriages between two men but not two women, or allowed married lesbian

couples to adopt but not married gay couples. See, e.g., Hernandez v. Robles, 855

N.E.2d 1, 10 (N.Y. 2006) (New York’s man-woman definition “does not put men and

women in different classes, and give one class a benefit not given to the other”).

That would be sex discrimination, but that is not what we have here.

Case law shows what actual sex discrimination looks like. Laws discriminate by

sex when they (1) require that “males must be preferred to females” as estate

administrators (Reed v. Reed, 404 U.S. 71, 73 (1971)); (2) make the husband “head

and master” of property owned in community with his wife (Kirchberg v. Feenstra,

450 U.S. 455, 462 (1981)); (3) require parents to support boys until 21, but girls only


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13

until 18 (Stanton v. Stanton, 421 U.S. 7, 9-10 (1975)); (5) bar sale of 3.2% beer to

males under 21, but to females only under 18 (Craig v. Boren, 429 U.S. 190, 191-92

(1976)); (6) allow male service-members to claim wives as “dependents” without

showing actual financial dependence, but require female service-members to

provide proof to claim husbands as “dependents” (Frontiero v. Richardson, 411 U.S.

677, 678 (1973)); (7) exclude males from the sole state-supported nursing school

(Miss. Univ. for Women v. Hogan, 458 U.S. at 719); (8) exclude women from an elite

military training academy (and provided women with an inferior academy) (United

States v. Virginia, 518 U.S. at 547). In light of these instances of real sex

discrimination, “[c]ommon sense dictates” that Louisiana’s man-woman definition of

marriage “has nothing to do with gender-based prejudice or stereotypes, and …

cannot be subject to heightened scrutiny on that basis.” Bishop, 962 F.Supp.2d at

1286; see also, e.g., Sevcik v. Sandoval, 911 F.Supp.2d 996, 1005 (D. Nev. 2012)

(man-woman marriage laws “are not directed toward persons of any particular

gender, nor do they affect people of any particular gender disproportionately such

that a gender-based animus can reasonably be perceived”).

Plaintiffs’ theory is not helped by the argument that the laws in Loving v.

Virginia, 388 U.S. 1, discriminated “equally” against blacks and whites and yet

were treated as race discrimination. See, e.g., Sevcik, 911 F.Supp.2d at 1004-05

(considering and rejecting this argument). There was nothing “equal” about the

anti-miscegenation laws Loving struck down. Those laws, which “arose as an

incident to slavery,” 388 U.S. at 6, imposed a “sham equality that … was in


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14

substance anti-black legislation.” Hernandez, 855 N.E.2d at 11. They were

“measures designed to maintain White Supremacy.” Loving, 388 U.S. at 11; see also

Sevcik, 911 F.Supp.2d at 1005 (“In Loving, the elements of the disability were

different as between Caucasians and non-Caucasians, whereas here, the burden on

men and women is the same.”). Loving thus treated anti-miscegenation laws as

what they were: “invidious racial discrimination.” 388 U.S. at 11; see also Vill. of

Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 265 (1977)

(“Proof of racially discriminatory intent or purpose is required to show a violation of

the Equal Protection Clause.”). But Louisiana’s marriage laws are wholly different.

There is no indication that they have the purpose or effect of disadvantaging males

or females, and therefore under settled law they cannot be considered sex

discrimination under equal protection.

If Louisiana’s marriage laws must be characterized as “classifying” for purposes

of this case, then they classify by sexual preference. See, e.g., Bishop, 962 F.Supp.2d

at 1287 (“[i]nstead of gender-based discrimination … sexual orientation provides the

best descriptor for the class-based distinction being drawn” by a man-woman

definition of marriage); Sevick, 911 F.Supp.2d at 1005 (concluding that “the level of

scrutiny applicable to sexual-orientation-based distinctions applies”).8 This means

that Louisiana’s laws do not trigger the heightened scrutiny reserved for sex-based

classifications but are instead subject to rational basis review. See II.A.1, supra.

8 The most recent district court decision—while mistaken on many counts, see infra—correctly concludes that the man-woman marriage definition “does not prefer one gender over the other” and therefore does not engage in sex discrimination. See Latta v. Otter, __ F.Supp.2d __, 2014 WL 1909999, at *15 (D. Idaho May 13, 2014).


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15

C. Louisiana’s marriage laws satisfy rational basis review.

To prevail under rational basis, plaintiffs must show that Louisiana’s decision to

retain the man-woman definition of marriage in its Constitution is “so unrelated to

the achievement of any combination of legitimate purposes that [the Court] can only

conclude that [Louisiana’s] actions were irrational.” Doe v. Jindal, 851 F.Supp.2d

995, 1005-06 (E.D. La. 2012) (quotes omitted) (first brackets added); see also Def.

MSJ 11-12 (discussing rational basis review). Plaintiffs cannot do so.

First, Louisiana rationally defines civil marriage as a man-woman union

because one of its principal purposes is to link children to an intact family formed

by their biological parents. See Def. MSJ 12-17; see also, e.g., Hernandez, 855

N.E.2d at 21 (Graffeo, J., concurring) (“[A]n orderly society requires some

mechanism for coping with the fact that sexual intercourse … commonly results in

pregnancy and childbirth. The institution of marriage is that mechanism.”). That

purpose is amply displayed in Louisiana family law by a web of legal presumptions

linking marriage, biological parentage, and child protection. See Def. MSJ 13-14;

Wilkinson v. Wilkinson, 323 So.2d 120, 124 (La. 1975) (the “public policy of

Louisiana that every effort must be made to uphold the validity of marriages … is

closely intertwined with the presumption of legitimacy”). Louisiana’s marriage laws

are structured around the biological reality that only opposite-sex couples naturally

procreate and that most children are born from the union of opposite-sex couples.

See, e.g., Hernandez, 855 N.E.2d at 7 (because “it remains true that the vast

majority of children are born as a result of a sexual relationship between a man and

a woman,” a legislature “could find that an important function of marriage is to


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16

create stability and permanence in the relationships that cause children to be

born”). This is not remotely “irrational,” as if Louisiana had limited marriage to

right-handed people or barred it to red-heads. It is a sensible and unsurprising

recognition of biological reality. See, e.g. Nguyen v. I.N.S., 533 U.S. 53, 73 (2001)

(“To fail to acknowledge even our most basic biological differences … risks making

the guarantee of equal protection superficial, and so disserving it.”).9

Louisiana’s purpose in retaining the man-woman definition of marriage does not

depend on speculation that “heterosexual couples make decisions regarding

marriage and procreation based on the status or recognition of same-sex

marriages.” Pl. MSJ 22-23. Its policy depends on a far simpler rationale. Only man-

woman couples naturally procreate and the overwhelming majority of children are

born from man-woman unions; therefore, Louisiana “could choose to offer an

inducement—in the form of marriage and its attendant benefits—to [man-woman]

couples who make a solemn, long-term commitment to each other.” Hernandez, 855

N.E.2d at 7.10 To be sure, Louisiana could also choose to extend those benefits to

9 Louisiana’s marriage laws cannot be reduced to “[m]oral condemnation of same-sex couples and relationships.” Pl. MSJ 22; see, e.g., Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring) (“Unlike the moral disapproval of same-sex relations … other reasons exist to promote the institution of marriage beyond mere moral disapproval of the excluded group.”). Nor can the intentions of more than 600,000 voters who approved the 2004 amendment be reduced to the bizarre comments of one legislator. Pl. MSJ 22 n.16; see Forum for Equality PAC, 893 So.2d at 718, 733-37 (noting there were 619,908 votes for the amendment, and discussing house and senate committee hearings). 10 Louisiana need not justify its policy by evidence that intact biological families “promot[e] an optimal environment for child-raising.” Pl. MSJ 23. Louisiana’s citizens can seek to promote the stability of intact biological families without being second-guessed by “courtroom factfinding.” Heller v. Doe, 509 U.S. 312, 320 (1993) (quotes omitted). Nor must Louisiana’s citizens provide an evidentiary basis for their reservations about altering the definition of marriage. Cf. Schuette, 134 S. Ct. at 138 (voters may forbid affirmative action


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17

same-sex couples, as New York and 15 other states have done, if its citizens at some

point reach consensus about an “evolving understanding of the meaning of

equality.” Windsor, 133 S. Ct. at 2693. But merely because Louisiana—and 33 other

states—take a different view at present does not make them irrational. Such a

drastic conclusion would be “inconsistent with the underlying premises of a

responsible, functioning democracy.” Schuette, 134 S. Ct. at 1637.

Second, Louisiana placed its marriage definition in the state constitution to

ensure that a change as profound as altering the definition of marriage would occur

only through wide social consensus. Def. MSJ 17-20. Windsor itself recognized that

states act rationally—indeed, wisely—in doing so. With respect to a “far-reaching

matter” like same-sex marriage, Windsor emphasized that “[t]he dynamics of state

government in the federal system are to allow the formation of consensus.” 133 S.

Ct. at 2692-93; see also id. at 2689 (noting that New York adopted same-sex

marriage only “[a]fter a statewide deliberative process that enable its citizens to

discuss and weigh arguments for and against same-sex marriage”). Windsor did not

establish a one-way ratchet that allows New York citizens to reach one consensus

on same-sex marriage, but denies Louisiana citizens the right to reach another.

Both states’ decisions were grounded on the “community’s considered perspective on

the historical roots of the institution of marriage,” and both were “without doubt a

proper exercise of … sovereign authority within our federal system.” Id. To

invalidate the decision of Louisiana’s citizens on such a profound matter would be

based on fear that it would “become itself a source of … resentments and hostilities,” and “[w]hether those adverse results would follow is, and should be, the subject of debate”).


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18

“demeaning to the democratic process.” Schuette, 134 S. Ct. at 1637.

***

In sum, Louisiana’s marriage laws trigger rational basis review, not heightened

scrutiny, under binding precedent that Windsor reaffirmed. Because Louisiana’s

laws rationally further important state interests in (1) linking children with intact

families formed by their biological parents, and (2) ensuring that a profound

alteration to the definition of marriage occurs only through wide social consensus,

the Court should reject plaintiffs’ equal protection claims.

III. LOUISIANA’S MARRIAGE LAWS SATISFY THE DUE PROCESS CLAUSE.

Plaintiffs also claim that Louisiana’s marriage laws burden their “fundamental

right to marry,” Pl. MSJ 17-19, and their “fundamental right to parental authority,”

id. at 20. These claims founder on the settled rule that “[t]o establish a substantive

due process violation, a plaintiff must first both carefully describe that right and

establish it as ‘deeply rooted in this Nation’s history and tradition.’” Malagon de

Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (quoting Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997)) (quotes omitted); see Def. MSJ 20-24.11

First, a “careful description” of the asserted right must include the fact that,

11 Plaintiffs’ claimed “right to parental authority” is subject to the same Glucksberg standard as the claimed “right to marry.” See Troxel v. Granville, 530 U.S. 57, 65 (2000) (relying on Glucksberg). Plaintiffs also assert a “right to remain married,” Pl. MSJ 19, but the only case they cite purporting to recognize such a right is the recent decision in Obergefell v. Wymyslo, 962 F.Supp.2d 968, 979 (S.D. Ohio 2013). Obergefell incorrectly created this right from Lawrence v. Texas, which expressly disclaimed it was saying anything about “whether the government must give formal recognition to any relationship that homosexual persons may enter.” 539 U.S. at 578. Furthermore, the “right to remain married,” as asserted here, appears identical to a right to interstate recognition of marriage, which finds no support in the Constitution. See Def. MSJ 7-11.


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19

here, it involves the right to marry someone of the same sex. See Glucksberg, 521

U.S. at 722 (noting the Court’s “tradition of carefully formulating the interest at

stake in substantive-due-process cases”).12 Plaintiffs cannot simply invoke a

generalized “right to marry”; they must be “more precise.” See id. (rejecting “right to

die” as insufficiently “precise”, and instead describing asserted right as the “right to

commit suicide which itself includes assistance in doing so”).13 Relying on a generic

“right to marry” proves too much: no one would say, for instance, that a state

burdens the “right to marry” by not allowing someone to wed her first cousin. In

that hypothetical case, a “careful description” of the asserted right would include

the consanguinity of the proposed spouse. Just so here: the right plaintiffs seek is

not simply to “marry” but to marry someone of the same sex. The right has not been

“carefully” described if the description omits that essential feature. Windsor

confirmed this: “marriage between a man and a woman no doubt had been thought

of by most people as essential to the very definition of that term and to its role and

function throughout the history of civilization.” 133 S. Ct. at 2689 (emphasis added).

Second, Windsor also forecloses the argument that a right to same-sex marriage

is “objectively, deeply rooted” in our traditions. Windsor observed that New York’s 12 See also, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (before “break[ing] new ground” in substantive due process, Court must “focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake”) 13 See also, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (rejecting “freedom from physical restraint,” and describing right as “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution”); Collins, 503 U.S. at 125 (rejecting due process right to have employers provide employees with a “safe working environment” as insufficiently similar to cases recognizing due process right to have state “take care of those who have already been deprived of their liberty”).


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recognition and adoption of same-sex marriage involved “a new perspective, a new

insight,” remarking that:

… until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and a woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.

133 S. Ct. at 2689. Given that fact, the right to enter into a same-sex marriage

cannot be one “deeply rooted in our Nation’s history and tradition.” Glucksberg, 521

U.S. at 720-21; see also Hernandez, 855 N.E.2d at 9 (“The right to marry someone of

the same sex … is not ‘deeply rooted’; it has not even been asserted until relatively

recent times.”). That does not disparage same-sex couples who wish to marry. It

merely says courts should not place this brand new development “outside the arena

of public debate and legislative action” by decreeing it a “fundamental” right. Id. at

720 (quoting Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).

Plaintiffs rely on “right to marry” cases such as Zablocki, Turner, and Loving, Pl.

MSJ 17-18, but those cases do not suggest anything like a right to marry someone of

the same sex. They stand for the proposition that states burden the right to marry

by, for instance: (1) barring marriage to people who shirk child support obligations

(Zablocki v. Redhail, 434 U.S. 374, 385-87 (1978)); (2) barring marriages by

prisoners not serving a life sentence (Turner v. Safely, 482 U.S. 78, 95-98 (1987));

and (3) barring marriage based on invidious racial classifications (Loving, 388 U.S.

at 11). Obviously, the “right to marry” recognized in these cases was shaped by their

context. See, e.g., Collins, 503 U.S. at 125 (in defining substantive due-process


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21

rights, courts must “focus on the allegations in the complaint to determine how

petitioner describes the constitutional right at stake”). But none of those cases

purport to constitutionalize state marriage regulation or disrupt the vast bulk of

domestic relations law. See, e.g., Zablocki, 434 U.S. at 386 (“By reaffirming the

fundamental character of the right to marry, we do not mean to suggest that every

state regulation which relates in any way to the incidents of or prerequisites for

marriage must be subjected to rigorous scrutiny.”).14 No one argues, for instance,

that these decisions establish a “right to marry” without a ceremony or the “right to

marry” one’s first cousin. States may, and do, differ on these matters. See, e.g.,

Windsor, 133 S. Ct. at 2691-92 (noting that “most States permit first cousins to

marry, but a handful … prohibit the practice”) (citations omitted).

In the same way, none of these cases purport to establish a “right to marry”

someone of the same sex. Loving, in particular, could not have done so: a mere five

years after Loving, the Supreme Court summarily rejected “for want of a

substantial federal question” the claim that the Constitution requires a state to

recognize same-sex marriage. Baker v. Nelson, 409 U.S. 810 (1972). But if any of

these cases established a right to same-sex marriage, surely Windsor would have

said so. To the contrary, Windsor said that “marriage between a man and a woman

no doubt had been thought of by most people as essential to the very definition of 14 In light of that disclaimer, it is incorrect to say that cases like Zablocki “recognized an unembellished right to marry.” Latta, 2014 WL 1909999, at *12. While the right recognized by the Supreme Court’s cases “transcends one’s race, confinement to prison, or ability to support children,” id. at *13, no case says the right “transcends” the sex of the proposed spouse. Windsor confirmed the opposite by observing that the man-woman aspect of marriage was historically considered “as essential to the very definition of … [marriage].” 133 S. Ct. at 2689.


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22

that term and to its role and function throughout the history of civilization.” 133 S.

Ct. at 2689. The “right to marry” cases plaintiffs cite have said similar things about

marriage. Zablocki, for example, said the right involves the “decision to marry and

raise a child in a traditional family setting” and “the right to procreate.” 434 U.S. at

386.15 These statements in Windsor, Zablocki, and other cases do not mean that the

Constitution contains its own definition of marriage. But they foreclose the notion—

necessary to plaintiffs’ due process claims—that a right to same-sex marriage is

“deeply rooted in our Nation’s history and tradition.” Glucksberg, 521 U.S. at 720.

Finally, plaintiffs rely on right to privacy cases. Pl. MSJ 17-18 (citing Planned

Parenthood of Pa. v. Casey, 505 U.S. 833, 851 (1992); Griswold v. Connecticut, 381

U.S. 479, 486 (1965); Lawrence v. Texas, 539 U.S. 558, 578 (2003)). Plaintiffs over-

read these decisions, which only protect certain private choices about sex and

procreation. See, e.g., Lawrence, 539 U.S. at 565 (describing Griswold as addressing

“the right to make certain decisions regarding sexual conduct”). But they do not

establish a right to compel official recognition of relationships formed as a result of

those private choices.16 Lawrence—the case closest to plaintiffs’ claims—explicitly

noted this limitation. While recognizing that a state could not punish consensual 15 See also, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“[m]arriage and procreation are fundamental to the very existence and survival of the race”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (due process includes right “to marry, establish a home and bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage “is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress”). 16 See, e.g., Hernandez, 855 N.E.2d at 10 (“Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against state intrusion on intimate, private activity. They seek from the courts access to a state-conferred benefit that the Legislature has rationally limited to opposite-sex couples.”).


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23

same-sex relations, Lawrence underscored that it “d[id] not involve whether the

government must give formal recognition to any relationship that homosexual

persons may enter.” 539 U.S. at 578; see also id. at 567 (observing that the Texas

law at issue “seek[s] to control a personal relationship that, whether or not entitled

to formal recognition in the law, is within the liberty of persons to choose without

being punished as criminals) (emphasis added). Plaintiffs rely heavily on Lawrence,

Pl. MSJ 18, but Lawrence disclaims the reading plaintiffs would impose on it—

namely, that the sexual privacy it protects compels recognition of same-sex

marriage. Lawrence does no such thing.17

CONCLUSION

The Court should (1) deny plaintiffs’ motion for partial summary judgment (Doc.

86), and (2) grant defendants’ motion for partial summary judgment and motion to

dismiss (Doc. 84).




17 A district court recently announced that “Lawrence unequivocally cements marriage as among the constitutionally protected liberties shared by homosexual and heterosexual persons alike.” Latta, 2014 WL 1909999, at *13. That is wrong. Lawrence “unequivocally” disclaimed that it was saying anything about “whether the government must give formal recognition to any relationship that homosexual persons may enter.” 539 U.S. at 578.


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24





14-31037.1511

TABLE OF CONTENTS Introduction .................................................................................................................... 1 Argument ........................................................................................................................ 2

I. Plaintiffs would nullify Louisiana’s authority to define marriage. ................... 2

II. Louisiana’s marriage laws satisfy the Equal Protection Clause. ...................... 6

A. Sexual orientation does not trigger heightened scrutiny. ............................ 6

1. Windsor reaffirms binding precedent that applies rational basis review to sexual-orientation classifications. ............................................ 6

2. Louisiana’s marriage laws are not “unusual” but instead follow

longstanding conflicts-of-law rules. .......................................................... 9 3. Binding precedent forecloses plaintiffs’ suspect-class argument. ........ 10

B. Louisiana’s marriage laws do not discriminate based on sex. ................... 11 C. Louisiana’s marriage laws satisfy rational basis review. ........................... 15

III. Louisiana’s marriage laws satisfy the Due Process Clause. ......................... 18



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2

TABLE OF AUTHORITIES Cases Adar v. Smith, 639 F.3d 146 (5th Cir. 2011) ..................................................................................... 1 Baker v. Gen. Motors Corp., 522 U.S. 222 (1998) ................................................................................................... 3 Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................. 21 Baker v. State, 744 A.2d 864 (Vt. 1999) ........................................................................................... 10 Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014) ............................................................. 12, 13 Bloom v. Willis, 60 So.2d 415 (La. 1952) ............................................................................................. 9 Bond v. United States, 131 S. Ct. 2355 (2011) ............................................................................................... 4 Brinson v. Brinson, 96 So.2d 653 (La. 1957) ............................................................................................. 9 Chivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La. App. 3 Cir. 1964) ...................................................................... 10 City of Cleburne v. Cleburne Living Ctr., Inc., 472 U.S. 432 (1985) ................................................................................................... 8 Collins v. City of Harker Heights, 503 U.S. 115 (1992) ........................................................................................... 19, 20 Craig v. Boren, 429 U.S. 190 (1976) ................................................................................................. 13 Doe v. Jindal, 851 F.Supp.2d 995 (E.D. La. 2012) ......................................................................... 15 Dred Scott v. Sandford, 60 U.S. 393 (1856) ..................................................................................................... 6


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3

Fritsche v. Vermilion Parish Hosp. Serv. Dist. No. 2, 2004-1192 (La. App. 3 Cir. 2/2/05); 893 So.2d 935 ................................................. 10 Frontiero v. Richardson, 411 U.S. 677 (1973) ................................................................................................. 13 Forum for Equality PAC v. McKeithen, 2004-2477 (La. 1/19/05); 893 So.2d 715 ............................................................ 10, 16 Ghassemi v. Ghassemi, 2007-1927 (La. App. 1 Cir. 10/15/08); 998 So.2d 731 ......................................... 9, 10 Griswold v. Connecticut, 381 U.S. 479 (1965) ................................................................................................. 22 Heller v. Doe, 509 U.S. 312 (1993) ................................................................................................. 16 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ................................................................................ passim In re Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004) .................................................................................. 10 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ............................................................................... 7, 11 Kirchberg v. Feenstra, 450 U.S. 455 (1981) ................................................................................................. 12 Latta v. Otter, __ F.Supp.2d __, 2014 WL 1909999 (D. Idaho May 13, 2014) ................... 14, 21, 23 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................... 16, 18, 22, 23 Louisville Gas & Elec. v. Coleman, 277 U.S. 32 (1928) ..................................................................................................... 7 Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................ 5-6, 13, 14, 20, 21


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4

Mahone v. Addicks Utility Dist., 836 F.2d 921 (5th Cir. 1988) ..................................................................................... 8 Maynard v. Hill, 125 U.S. 190 (1888) ................................................................................................. 22 Meyer v. Nebraska, 262 U.S. 390 (1923) ................................................................................................. 22 Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2006) ................................................................................... 18 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ............................................................................................. 9, 13 Moore v. East Cleveland, 431 U.S. 494 (1977) ................................................................................................. 20 Nguyen v. I.N.S., 533 U.S. 53 (2001) ................................................................................................... 16 Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013) ...................................................................... 18 Personnel Admin. of Mass. v. Feeney, 442 U.S. 226 (1979) ................................................................................................. 12 Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992) ................................................................................................. 22 Reed v. Reed, 404 U.S. 71 (1971) ................................................................................................... 12 Reno v. Flores, 507 U.S. 292 (1993) ................................................................................................. 19 Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (1989) ................................................................................................... 7 Romer v. Evans, 517 U.S. 620 (1996) ......................................................................................... 7, 8, 11 Schuette v. BAMN, 134 S. Ct. 1623 (2014) ...................................................................... 1, 3, 4, 16-17, 18


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5

Sevcik v. Sandoval, 911 F.Supp.2d 996 (D. Nev. 2012) .................................................................... 13, 14 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ................................................................................................. 22 Stanton v. Stanton, 421 U.S. 7 (1975) .................................................................................................... 13 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013) ..................................................................................... 8 Succession of Caballero v. Executor, 24 La. Ann. 573 (1872) ............................................................................................ 10 Succession of Marinoni, 148 So. 888 (La. 1933) ............................................................................................... 9 Troxel v. Granville, 530 U.S. 57 (2000) ................................................................................................... 18 Turner v. Safely, 482 U.S. 78 (1987) ................................................................................................... 20 United States ex rel. Modianos v. Tuttle, 12 F.2d 927 (E.D. La. 1925) ................................................................................. 9-10 United States v. Virginia, 518 U.S. 515 (1996) ....................................................................................... 8, 12, 13 United States v. Windsor, 133 S. Ct. 2675 (2013) ..................................................................................... passim Vill. of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252 (1977) ................................................................................................. 14 Washington v. Glucksberg, 521 U.S. 702 (1997) ..................................................................................... 18, 19, 22 Wilkinson v. Wilkinson, 323 So.2d 120 (La. 1975) ......................................................................................... 15


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6

Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ..................................................................................... 11 Zablocki v. Redhail, 434 U.S. 374 (1978) ..................................................................................... 20, 21, 22 Statutes Defense of Marriage Act, 110 Stat. 2419 .................................................................................................. passim 28 U.S.C. §1738C ............................................................................................................ 3 LA. CIV. CODE art. 3520 ..................................................................................... 1-2, 9, 10 LA. R.S. 47:294 ................................................................................................................ 2 Constitutional Provisions U.S. CONST. art. IV .......................................................................................................... 3 U.S. CONST. amend. V ..................................................................................................... 2 U.S. CONST. amend. XIV ....................................................................................... passim LA. CONST. art. XII, § 15 ................................................................................................. 1 Other Authorities IRS Revenue Ruling 2013-17 ......................................................................................... 2 Louisiana Revenue Information Bulletin No. 13-024 ................................................... 2 Merits Brief for United States in United States v. Windsor (No. 12-307) ................. 11 Restatement (2d) Conflicts of Laws § 284 ................................................................... 10


14-31037.1517




Defendants

CIVIL ACTION



REF: ALL CASES

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ STATEMENT OF UNDISPUTED MATERIAL FACTS

Defendants submit this response to plaintiffs’ statement of undisputed material

facts (Doc. 86-4):

1. Admitted.

2. Admitted as to all plaintiff couples (2a-2f).

3. Admitted.

4. Admitted.

5. Admitted.

6. Admitted.

7. Admitted.

8. Admitted.

9. Admitted to the extent that Louisiana Revenue Information Bulletin No.

13-024 states that, pursuant to Louisiana Constitution article XII, § 15,

the Louisiana Department of Revenue shall not recognize same-sex


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2

marriages when determining the filing status of Louisiana taxpayers,

regardless of the taxpayers’ federal filing status. However, it is inaccurate

to state that the Louisiana Department of Revenue “will not follow” IRS

Revenue Ruling 2013-17. The IRS ruling applies only to the federal

government and does not purport to govern Louisiana tax policy. See IRS

Rev. Rul. 2013-17, at 1 (asking “[w]hether, for Federal tax purposes, the

[IRS] recognizes a marriage of same-sex individuals validly entered into in

a state whose laws authorize the marriage of two individuals of the same

sex even if the spouses are domiciled does not recognize the validity of

same-sex marriages”) (emphasis added).

10. Admitted, with the exception of the statement that plaintiffs filed their

2012 Louisiana tax return “[i]n accordance with Louisiana Revised

Statute 47:294.” That statute must be interpreted in conformity with

Louisiana Constitution article XII, § 15. Consequently, it cannot validly

require the Louisiana Department of Revenue to recognize same-sex

marriages for purposes of Louisiana tax law.

11. Admitted.

12. Denied as written. Louisiana Revised Statute 47:294 must be interpreted

in conformity with Louisiana Constitution article XII, § 15. Consequently,

it cannot validly require the Louisiana Department of Revenue to

recognize same-sex marriages for purposes of Louisiana tax law.

13. Admitted.


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3

14. Defendants lack sufficient knowledge to admit or deny this statement.









14-31037.1520

4





14-31037.1521




Defendants

CIVIL ACTION



REF: ALL CASES

DEFENDANTS’ MOTION FOR LEAVE TO FILE REPLY BRIEF

Defendants move for leave to file a Reply Brief in support of their motion for

partial summary judgment and motion to dismiss (Doc. 84). Defendants’ reply brief

complies with the 10-page limit in Local Rule 7.7 and the Court’s scheduling order

(Doc. 75), and, further, is limited to responding to arguments raised in plaintiffs’

opposition (Doc. 100). Finally, filing of this brief would be timely under the Court’s

scheduling order, which provided that “[a]ny replies … are due by Monday, June 2,

2014.” (Doc. 75 at 1). Counsel for plaintiffs does not oppose this motion.





14-31037.1522

2


I hereby certify that on June 2, 2014, I electronically filed the foregoing with the

Clerk of Court by using the CM/ECF system, which will be electronically served on all counsel of record.



14-31037.1523




Defendants

CIVIL ACTION



REF: ALL CASES

ORDER

Having considered Defendants’ Motion for Leave to File Reply Brief, it is

ORDERED that the motion is GRANTED.

Entered this ____ day of ___________, 2014, in New Orleans, Louisiana.

________________________________________ UNITED STATES DISTRICT JUDGE

14-31037.1524




Defendants

CIVIL ACTION



REF: ALL CASES

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF

PARTIAL SUMMARY JUDGMENT AND DISMISSAL

Plaintiffs’ opposition identifies no material fact disputes. See Doc. 100-5, ¶¶1-7.1

The Court may therefore resolve as a matter of law whether Louisiana’s refusal to

recognize plaintiffs’ same-sex marriages violates the Fourteenth Amendment.

Defendants respectfully ask the Court to grant their motion for partial summary



To cut to the chase: if plaintiffs are right that states are constitutionally

compelled to recognize same-sex marriage, Windsor makes no sense. See Def. MSJ

(Doc. 84-1) 4-7; Def. Opp. (Doc. 102-1) 2-6 (discussing United States v. Windsor, 133

S. Ct. 2675 (2013)). Windsor’s nine-paragraph discussion of states’ “historical and

1 Any disagreements in plaintiffs’ counter-statement do not pertain to material facts. Because Louisiana law is clear, it is immaterial that plaintiffs have no “independent knowledge” of defendants’ “understanding of Louisiana law.” Doc. 100-5, ¶¶9-11. Further, despite plaintiffs’ response (see id. ¶8), the parties do not disagree about the contractual remedies available to same-sex couples; defendants agree that “Louisiana law provides no mechanism to ‘contract’ for custody of a child.” Pl. Opp. (Doc. 100) 14.


14-31037.1525

2

essential authority to define the marital relation,” id. at 2692, was wasted ink. Its

praise of New York’s “statewide deliberative process that enabled its citizens to

discuss and weigh arguments for and against same-sex marriage,” id. at 2689, was

window-dressing. Accepting plaintiffs’ claims would effectively overrule Windsor.

A. Windsor reaffirmed states’ authority to define marriage.

Plaintiffs respond that “Windsor did not authorize states to violate the

Fourteenth Amendment.” Pl. Opp. 20. No one says it did. The point is that Windsor

struck down DOMA because the states—not the federal government—decide

whether to recognize same-sex marriage. This does not create a “domestic relations

exception” to the Fourteenth Amendment, Pl. Opp. 19, but simply recognizes that

defining marriage falls within the “State’s broader authority to regulate the subject

of domestic relations.” 133 S. Ct. at 2691.

Plaintiffs candidly assert that the Constitution “establish[es] a one-way ratchet”

allowing states to recognize same-sex marriage but denying them authority not to.

Pl. Opp. 20. But that argument ignores Windsor’s respect for the responsibility of

state citizens to “discuss and weigh arguments for and against same-sex marriage.”

133 S. Ct. at 2692, and it ignores the axiom that “[i]n the search for enlightened

public policy, individual States and communities are free to experiment with a

variety of approaches to public issues.” EXEC. ORDER NO. 12612, 52 FED. REG. 41685,

§ 2(f) (Oct. 26, 1987) (Pres. Reagan).

B. Plaintiffs’ claims defy the Full Faith and Credit Clause.

Plaintiffs also miss the relevance of the Full Faith and Credit Clause (FFC). The

point is not that FFC trumps the Fourteenth Amendment, see Pl. Opp. 22 (asserting


14-31037.1526

3

that “the amendment controls” in any “conflict” with FFC), but rather that

plaintiffs’ claims are functionally identical to the claim that Louisiana must give

full faith and credit to same-sex marriages. (Indeed, the Robicheaux plaintiffs raise

an FFC claim, see Def. MSJ 10). It is settled, however, that FFC does not compel

states to recognize out-of-state marriages. Def. MSJ 7-10.

While accepting this principle as “not disputed,” Pl. Opp. 22, plaintiffs demand

additional warrant for Louisiana’s marriage policy. But Windsor itself explained

why states—who have a “rightful and legitimate concern in the marital status of

persons domiciled within [their] borders,” 133 S. Ct. at 2691—may reasonably

decide not to recognize same-sex marriage. This decision is a “far-reaching legal

acknowledgment,” requiring “the community’s considered perspective,” and

demanding “formation of consensus” among citizens. Id. at 2692-93. Plaintiffs

reduce Louisiana’s own decision to “arbitrarily target[ing] a group for

discrimination,” Pl. Opp. 22, but Windsor called it “a proper exercise of … sovereign

authority within our federal system.” 133 S. Ct. at 2692.2

2 Moreover, DOMA section 2 is not an “affirmative defense,” Pl. Opp. 22-23, but simply confirms that states are not “compel[led] … to substitute the statutes or other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Def. MSJ 10 (quoting Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Even assuming section 2 is an “affirmative defense,” however, defendants have not waived it because (1) they generally denied that FFC compels recognition of same-sex marriages (see Doc. 80 ¶62); and (2) they raised section 2 soon enough not to prejudice plaintiffs. See, e.g., Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (no waiver if “defendant raised the issue at a pragmatically sufficient time and [the plaintiff] was not prejudiced in its ability to response”) (quotes omitted).


14-31037.1527

4

II. LOUISIANA’S MARRIAGE LAWS SATISFY EQUAL PROTECTION.

A. Binding precedent requires rational-basis review.

Louisiana’s laws trigger rational-basis review under binding precedent. Def.

MSJ 11-12; Def. Opp. 6-11. The “doctrinal evolution” plaintiffs point to in Romer,

Lawrence, and Windsor (Pl. Opp. 5) fails to support heightened scrutiny: Windsor

applied the same rational-basis review in Romer, Def. Opp. 7-8, and Lawrence was

not an equal protection case. The only post-Windsor development plaintiffs cite—the

SmithKline decision, Pl. Opp. 4-5 n.6—misreads Windsor and is under a sua sponte

en banc call. Id. at 8 (discussing SmithKline Beecham Corp. v. Abbott Labs., 740

F.3d 471 (9th Cir. 2013)). Finally, plaintiffs are wrong that, “[l]ike DOMA,”

Louisiana laws “create two contradictory marriage regimes within the same State.”

Pl. Opp. 4. DOMA usurped the states’ domestic relations authority, while Louisiana

exercised that authority. So even assuming Windsor applied something north of

rational-basis to a federal marriage definition, there would be no warrant for

applying it to a state definition.3

B. Louisiana’s marriage laws further critical government interests.

Louisiana’s marriage laws further two critical government interests. First, a

primary purpose of marriage is to “link children with an intact family formed by

their biological parents.” Def. Opp. 15. Thus it is rational to define marriage as a

man-woman union because “it remains true that the vast majority of children are

born as a result of a sexual relationship between a man and a woman.” Hernandez

3 Plaintiffs initially urged heightened scrutiny based on sex discrimination, Pl. MSJ (Doc. 86-1) 15, but omit the argument in their opposition. In any event, Louisiana’s marriage laws do not discriminate on the basis of sex. Def. Opp. 11-14.


14-31037.1528

5

v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006). Second, Louisiana constitutionalized its

definition “to ensure that a change as profound as altering the definition of

marriage would occur only through wide social consensus.” Def. Opp. 17. That

decision was rational because enlarging the historic definition is a “far-reaching”

step with “substantial societal impact” that demands citizen “consensus.” Windsor,

133 S. Ct. at 2692, 2693.

Plaintiffs dismiss these rationales as “specious.” Pl. Opp. 1. But their arguments

come nowhere near to showing that Louisiana’s laws are “so unrelated to the

achieve of any combination of legitimate purposes that [the Court] can only

conclude [Louisiana’s] actions were irrational.” Doe v. Jindal, 851 F.Supp.2d 995,

1005-06 (E.D. La. 2012) (quotes omitted).4

1. Louisiana’s laws link children with their biological parents.

Primarily, plaintiffs claim Louisiana’s marriage laws are irrational because

defendants “do not explain how denying recognition to same-sex marriages has any

effect on heterosexuals whatsoever.” Pl. Opp. 8. They say Louisiana must prove that

recognizing same-sex marriage will “‘influence … whether heterosexual couples will

marry’” and, conversely, that forbidding it “‘will increase the number of couples

4 Oddly, plaintiffs assert that “[d]efendants offer no evidence to support [Louisiana] laws beyond [defendants’] three affidavits.” Pl. Opp. 1. But the Civil Code articles and commentary set forth the objectives of Louisiana marriage and family law, Def. MSJ 12-17, and the Louisiana Supreme Court has exhaustively interpreted the legislative history of the 2004 marriage amendment. Forum for Equality PAC v. McKeithen, 2004-2477, pp. 14-32 (La. 1/19/05); 893 So.2d 715, 725-37. This is more than enough to sustain summary judgment, particularly under rational-basis. See Heller v. Doe, 509 U.S. 312, 320 (1993) (“[a] State … has no obligation to produce evidence to sustain the rationality of a statutory classification,” but instead “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it”) (quotes omitted).


14-31037.1529

6

choosing to enter into opposite-sex marriages.’” Id. at 8-9 (quoting De Leon v. Perry,

935 F.Supp.2d 632, 653 (W.D. Tex. 2014); Goodridge v. Dep’t of Pub. Health, 798

N.E.2d 941, 963 (Mass. 2003)). Plaintiffs are wrong. They would require Louisiana

not only to prove a negative, but to predict the future. No level of scrutiny requires

the power of prophecy—certainly not rational basis, in which a “legislative choice …

may be based on rational speculation unsupported by evidence or empirical data.”

F.C.C. v. Beach Comm., Inc., 508 U.S. 307, 315 (1993).5

Predicting the social effects of redefining marriage is reserved to the democratic

process. Windsor said so. Unlike plaintiffs, Windsor reposed faith in the wisdom of

“citizens to discuss and weigh arguments for and against same-sex marriage.” 133

S. Ct. at 2689. Unlike plaintiffs, Windsor acknowledged that a state’s citizens

“understand[ ] that marriage is more than a routine classification” whose shape has

“substantial societal impact … in the daily lives and customs of its people.” Id. at

2692, 2693. And, unlike plaintiffs, Windsor understood that—in a nation where

people disagree on this profound issue—altering the longstanding definition of

marriage demands a genuine “consensus” of a state’s citizens. Id. at 2692.

Plaintiffs also claim Louisiana’s man-woman definition does not rationally link

children to biological parents because same-sex couples can have children “through

adoption or assistive reproductive technology.” Pl. Opp. 10; see also id. at 2 n.3 (two

plaintiffs used the “method of conception … known as reciprocal in vitro

5 See also Planned Parenthood v. Abbott, __ F.3d __, 2014 WL 1257965 at *7 (5th Cir. Mar. 27, 2014) (“Because [rational basis] does not lend itself to an evidentiary inquiry in court, the state is not required to ‘prove’ that the objective of the law would be fulfilled.”)


14-31037.1530

7

fertilization”). Plaintiffs are again mistaken. First, they cannot deny that “the vast

majority of children are born from the union of opposite-sex couples.” Hernandez,

855 N.E.2d at 7. Merely because Louisiana’s classification does not include every

other adoptive or reproductive scenario does not make it irrational. LeClerc v. Webb,

419 F.3d 405, 420 (5th Cir. 2005) (rational-basis review “seek[s] only the assurance

that the classification at issue bears some fair relationship to a legitimate public

purpose”) (quotes omitted). Second, plaintiffs overlook that Louisiana has

compelling interests in regulating adoption and reproductive technology. Louisiana

regulates both subjects to reinforce its marriage and family laws.6 Plaintiffs would

brand Louisiana’s family law “irrational” simply because it does not embrace every

new iteration of reproductive technology.7 That cannot be right, however, given

states’ “authority to regulate the subject of domestic relations with respect to … the

protection of offspring.” Windsor, 133 S. Ct. at 2691 (quotes omitted).

2. Louisiana’s laws ensure consensus-based social change.

Instead of confronting Louisiana’s “social consensus” argument—which comes

directly from Windsor and Schuette (Def. MSJ 17-20; Def. Opp. 3-5, 17-18)—

plaintiffs spend five pages discussing desegregation decisions from the 1960s. Pl. 6 See LA. CHILD. CODE art. 1221 (allowing joint private adoptions only by “a married couple”); LA. R.S. 9:130 (IVF patients may renounce parental rights to embryo only “in favor of another married couple … willing and able to receive the [embryo]”); LA. CIV. CODE art. 188 (husband “may not disavow a child born to his wife as a result of an assisted conception to which he consented”). 7 For instance, regarding “reciprocal in vitro fertilization” (Pl. Opp. 2 n.3), Louisiana would recognize the maternity only of the woman who bore the child, not the woman who donated her egg. LA. CIV. CODE art. 184 cmt. a (“the mother of a child is the woman who gives birth to the child”); see also KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK at 388 (West 2013) (under article 184, “in the case of donated eggs, the birth mother is the legal mother even though the child has the DNA of another person”).


14-31037.1531

8

Opp. 15-19. They assert that Louisiana, by retaining its marriage definition, “has

determined to actively work against Plaintiffs in their struggle for equality,” just

“[a]s it did during desegregation.” Id. at 18. That is rhetoric, not argument.

Important as they were, the desegregation cases can be summarized in one

sentence: “The equal protection clause of the fourteenth amendment prevents any

invidious discrimination on the basis of race.” Lee v. Macon Cnty. Bd. of Ed., 448

F.2d 746, 753 (5th Cir. 1971) (citation omitted). But they do provide a helpful

contrast with this case. The desegregation cases involved strict scrutiny; this case

involves rational-basis review. The desegregation cases involved orchestrated

resistance to federal authority accompanied by “‘demonstrations, picketing, stone-

throwing, and turmoil,’” (Pl. Opp. 17 (quoting Bush v. Orleans Parish Sch. Bd., 308

F.2d 491, 494 (5th Cir. 1962)); this case involves a state’s citizens, peacefully voting.

Finally, the desegregation cases involved racial discrimination that violated “the

clear and central purpose of the Fourteenth Amendment,” Loving v. Virginia, 388

U.S. 1, 10 (1967); this case involves an aspect of marriage that “until recent years …

had been thought of by most people as essential to the very definition of that term

and to its role and function throughout the history of civilization.” Windsor, 133 S.

Ct. at 2689. The desegregation cases utterly fail to support plaintiffs’ claims.

III. LOUISIANA’S MARRIAGE LAWS SATISFY DUE PROCESS.

Plaintiffs’ due process claims fail because a right to marry someone of the same

sex is not “deeply rooted in this Nation’s history and tradition.” Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997); Def. MSJ 20-24; Def. Opp. 18-23. Plaintiffs

mistakenly say this right does not “break new ground,” Pl. Opp. 6, but Windsor said


14-31037.1532

9

New York’s adoption of same-sex marriage in 2011 involved “a new perspective, a

new insight.” 133 S. Ct. at 2689. No state recognized the right until 2003, and two-

thirds of the states do not recognize it today. Def. MSJ 1-2. The right therefore

cannot be “so rooted in the traditions and conscience of our people as to be ranked

as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

A careful description of the asserted right must include the fact that it involves

marrying a same-sex partner. Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505

(5th Cir. 2006) (right must be “carefully describe[d]”). But, far from optional, the

man-woman feature of marriage was thought “essential to the very definition … and

to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at

2689 (emphasis added). Plaintiffs must be “more precise” than invoking a generic

“right to marry.” Glucksberg, 520 U.S. at 722; Def. Opp. 19.

Plaintiffs respond that “[a]ll individuals share in fundamental rights.” Pl. Opp.

6. No one doubts that. But there is “a tradition of carefully formulating the interest

at stake in substantive-due-process cases” to discern whether a fundamental right

is asserted. Glucksberg, 520 U.S. at 722. Here, plaintiffs have not. Nor does that

analysis “repeat[ ] the mistake of Bowers” by “limiting the right too narrowly.” Pl.

Opp. 6; Bowers v. Hardwick, 478 U.S. 186 (1986). The same case that corrected

Bowers said it “d[id] not involve whether the government must give formal

recognition to any relationship that homosexual persons may enter.” Lawrence v.

Texas, 539 U.S. 558, 578 (2003).

Plaintiffs and amici also rely on the Supreme Court’s “right to marry” cases. Pl.


14-31037.1533

10

Opp. 6, 12-13; Doc. 92. But those cases—which struck down marriage bans based on

incarceration, child support, and race, Def. Opp. 20-21—do not suggest a right to

marry regardless of a spouse’s sex. See Zablocki v. Redhail, 434 U.S. 374, 386 (1978)

(“right to marry” does not impact “every state regulation which relates in any way

to the incidents of or prerequisites for marriage”). Only five years after Loving—a

case heavily cited by plaintiffs and other courts, Def. MSJ 23-24; Def. Opp. 5-6—the

Supreme Court rejected a constitutional right to same-sex marriage. Baker v.

Nelson, 409 U.S. 810 (1972). In light of that, a right to marry someone of the same

sex cannot be “deeply rooted in this Nation’s history and tradition.” Glucksberg, 520

U.S. at 720-21 (quotes omitted).

CONCLUSION


judgment and motion to dismiss.





I hereby certify that on June 2, 2014, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will be electronically served on all counsel of record.

/s S. Kyle Duncan S. Kyle Duncan, Attorney for Defendants


14-31037.1534

TABLE OF CONTENTS Defendants’ Reply Brief .................................................................................................. 1

I. Plaintiffs would nullify Louisiana’s authority to define marriage. ................ 1

A. Windsor reaffirmed states’ authority to define marriage ............................. 2

B. Plaintiffs’ claims defy the Full Faith and Credit Clause .............................. 2

II. Louisiana’s marriage laws satisfy equal protection ........................................ 4

A. Binding precedent requires rational-basis review ........................................ 4 B. Louisiana’s marriage laws further critical government interests ............... 4

1. Louisiana’s laws link children with their biological parents .................. 5 2. Louisiana’s laws ensure consensus-based social change ........................ 7

III. Louisiana’s marriage laws satisfy due process ................................................ 8



14-31037.1535

2

TABLE OF AUTHORITIES Cases Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................. 10 Bowers v. Hardwick, 478 U.S. 186 (1986) ................................................................................................... 9 Bush v. Orleans Parish Sch. Bd., 308 F.2d 491 (5th Cir. 1962) ..................................................................................... 8 De Leon v. Perry, 935 F.Supp.2d 632 (W.D. Tex. 2014) ........................................................................ 5 Doe v. Jindal, 851 F.Supp.2d 995 (E.D. La. 2012) ........................................................................... 5 F.C.C. v. Beach Comm., Inc., 508 U.S. 307 (1993) ................................................................................................... 6 Forum for Equality PAC v. McKeithen, 2004-2477 (La. 1/19/05); 893 So.2d 715 .................................................................... 5 Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003) ................................................................................................... 3 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) .................................................................................... 5 Heller v. Doe, 509 U.S. 312 (1993) ................................................................................................... 5 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ...................................................................................... 4, 6 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................................... 4, 9 LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005) ..................................................................................... 7 Lee v. Macon Cnty. Bd. of Ed., 448 F.2d 746 (5th Cir. 1971) ..................................................................................... 8


14-31037.1536

3

Loving v. Virginia, 388 U.S. 1 (1967) ................................................................................................. 8, 10 Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2006) ..................................................................................... 9 Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009) ..................................................................................... 3 Planned Parenthood v. Abbott, __ F.3d __, 2014 WL 1257965 (5th Cir. Mar. 27, 2014) ........................................... 6 Romer v. Evans, 517 U.S. 620 (1996) ................................................................................................... 4 Schuette v. BAMN, 134 S. Ct. 1623 (2014) ............................................................................................... 7 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013) ..................................................................................... 4 Snyder v. Massachusetts, 291 U.S. 97 (1934) ..................................................................................................... 9 United States v. Windsor, 133 S. Ct. 2675 (2013) ..................................................................................... passim Washington v. Glucksberg, 521 U.S. 702 (1997) .............................................................................................. 8-10 Zablocki v. Redhail, 434 U.S. 374 (1978) ................................................................................................. 10 Statutes Defense of Marriage Act, 110 Stat. 2419 ........................................................................................................ 2, 4 28 U.S.C. §1738C ............................................................................................................ 3 LA. CHILD. CODE art. 1221 .............................................................................................. 7 LA. CIV. CODE art. 184 .................................................................................................... 7


14-31037.1537

4

LA. R.S. 9:130 .................................................................................................................. 7 Constitutional Provisions U.S. CONST. art. IV ....................................................................................................... 2-3 U.S. CONST. amend. XIV ....................................................................................... passim LA. CONST. art. XII, § 15 ................................................................................................. 5 Other Authorities EXEC. ORDER NO. 12612, 52 FED. REG. 41685 ................................................................ 2 KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK ...................................................... 7


14-31037.1538

1159867v1




Plaintiffs

v.


Defendants

*************

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327

SECTION F(5)



REF: ALL CASES

*************************************** *

UNOPPOSED MOTION FOR LEAVE TO FILEREPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS'

MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs respectfully move the Court for leave to file a reply memorandum in

support of their Motion for Partial Summary Judgment. Plaintiffs seek leave to respond to the

arguments raised by Defendants in their opposition and respectfully submit that the

memorandum will assist the Court in its review of the issues. The parties have agreed not to

contest motions for leave to file reply memoranda regarding their cross-motions for partial

summary judgment, and this motion is thus unopposed.

WHEREFORE, Plaintiffs respectfully request that they be granted leave to file

the accompanying reply memorandum.


14-31037.1539

- 2 -

1159867v1







[email protected] PIGMAN WALTHER

WITTMANN L.L.C.546 Carondelet StreetNew Orleans, Louisiana 70130Telephone: (504) 581-3200

Attorneys for Forum for Equality Louisiana,Inc., Jacqueline M. Brettner, M. LaurenBrettner, Nicholas J. Van Sickels, Andrew S.Bond, Henry Lambert, R. Carey Bond, L.Havard Scott, III, and Sergio March Prieto


[email protected] A. BONIN, LLC &

RICHARD G. PERQUE, LLC700 Camp StreetNew Orleans, Louisiana 70130Phone: 504-524-3306Fax: 504-529-4179

Attorney for Jonathan P. Robicheaux, DerekPenton, Nadine Blanchard, and CourtneyBlanchard


I hereby certify that on this 2nd day of June, 2014, the foregoing Motion for Leave

to File Reply Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment has

been served upon all counsel of record by the Court's CM/ECF system.



14-31037.1540

1159869v1




Plaintiffs

v.


Defendants

*************

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327

SECTION F(5)



REF: ALL CASES

*************************************** *

ORDER

Considering the Motion for Leave to File Reply Memorandum in Support of

Plaintiffs' Motion for Partial Summary Judgment, it is ORDERED that:

The Motion is GRANTED. Plaintiffs may file their reply memorandum into the

record.

New Orleans, Louisiana, this ____ day of June, 2014.

___________________________________________________UNITED STATES DISTRICT JUDGE

14-31037.1541

1159284v3




Plaintiffs

v.


Defendants

*************

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327

SECTION F(5)



REF: ALL CASES

*************************************** *

PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs file this Reply Memorandum in support of their Motion for Partial Summary

Judgment. Rec. Doc. 86.

I. LAW AND ARGUMENT

In May, three more federal district courts held that state laws prohibiting the celebration

or recognition of same-sex marriages violated the Equal Protection or Due Process Clauses.

Whitewood v. Wolf, No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS 68771, at *49 (M.D. Pa. May 20,

2014) (Pennsylvania's statutory ban on same-sex marriage violated the Equal Protection and Due

Process Clauses); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 U.S. Dist. LEXIS 68171, at

*46 (D. Or. May 19, 2014) (Oregon's constitutional amendment banning same-sex marriage,

passed by voters in 2004, violated the Equal Protection Clause); Latta v. Otter, No. 1:13-cv-

00482-CWD, 2014 U.S. Dist. LEXIS 66417, at *37 (D. Idaho May 13, 2014) (Idaho's bans,

including a provision of the Idaho constitution passed by voters in 2006, violated the Equal

Protection and Due Process Clauses). Louisiana's laws barring recognition of same-sex

marriages should fare no better.


14-31037.1542

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1159284v3

A. Louisiana Must Exercise Its Power over Domestic Relations in Compliance with the Fourteenth Amendment.

1. The Windsor Majority Expressly Disclaimed Federalism as the Rationale for its Ruling.

Defendants rely heavily on a misinterpretation of United States v. Windsor, 133 S. Ct.

2675 (2013). Defendants argue that Plaintiffs oversimplify Windsor and that Windsor

overturned DOMA Section 3 on federalism, not equal protection grounds. Rec. Doc. 102 at 5.

The Supreme Court did not hold in Windsor that state regulation of marriage is beyond the scope

of the Fourteenth Amendment. Though the Windsor majority discussed why DOMA intruded on

states' traditional power to govern marriage, the majority rejected federalism as its rationale:

Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism.

Id. at 2692 (emphasis added). Rather, the Court's holding was grounded in equal protection and

due process: Congress's departure from its traditional reliance on state law to define marriage

suggested a "[d]iscrimination[] of an unusual character" with a purpose "to impose restrictions

and disabilities." Id. "The resulting injury and indignity" was "a deprivation of an essential part

of the liberty protected by the Fifth Amendment." Id. Justice Scalia, joined by Justice Thomas,

acknowledged in his dissent that the opinion "formally disclaimed reliance on principles of

federalism" and called it "pretense" that the majority's rationale would be limited to only the

federal government and DOMA. Id. at 2705; see also id. ("the opinion starts with seven full

pages about the traditional power of States to define domestic relations—initially fooling many

readers into thinking that this is a federalism opinion"). Thus, to adopt the Defendants' position

that federalism, not equal protection, drove the Windsor majority, the Court would have to reject

the view of seven Supreme Court justices.


14-31037.1543

- 3 -

1159284v3

2. Schuette Did Not Abrogate Prior Precedent Holding that a Majority Vote May Not Infringe Minorities' ConstitutionalRights.

Defendants contend that Plaintiffs' call for equal protection and due process asks the

Court to "constitutionalize the issue [of whether to recognize same-sex marriages] and nullify

Louisiana's authority to decide it." Rec. Doc. 102 at 3. But Defendants' argument renders the

Fourteenth Amendment's guarantee of equal protection and fundamental liberty interests subject

to majority impulse, making it effectively meaningless.

Voter approval of the Louisiana constitutional provision does not immunize it from equal

protection and due process scrutiny. Defendants assert that it is "the responsibility of voters—

not the courts—to decide the issue," Rec. Doc. 102 at 4, and cite the Supreme Court's recent

decision in Schuette v. BAMN, 134 S. Ct. 1623 (2014), for the proposition that a court should not

find a state referendum unconstitutional. Schuette does not establish a state's right to violate the

Fourteenth Amendment by majority vote. The case involved the Michigan electorate's vote to

stop affirmative action in school admissions. Id. at 1630. It did not involve state efforts to

institutionalize discrimination. Rather, Schuette stands for the "unremarkable proposition that

voters can and should be allowed to end their state's discriminatory policies." Latta, 2014 U.S.

Dist. LEXIS 66417 at *80 (emphasis added) (discussing Schuette). Schuette in no way abrogates

prior Supreme Court precedent affirming that a majority of voters cannot deprive minorities of

fundamental rights. See, e.g., Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-

37 (1964) ("[a] citizen's constitutional rights can hardly be infringed simply because a majority

of the people choose that it be"); W.Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)

("fundamental rights may not be submitted to vote; they depend on the outcome of no

elections"); see also Romer v. Evans, 517 U.S. 620 (1996) (overturning voter-approved Colorado

constitutional amendment targeting gay and lesbian individuals).


14-31037.1544

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1159284v3

3. Louisiana May Not Single Out Same-Sex Couples for CategoricalNonrecognition Without Constitutional Justification.

Defendants argue that the Anti-Recognition Laws are not a discrimination of an

"unusual" character because Louisiana could decline to recognize same-sex marriages as

contrary to public policy under traditional comity rules. Rec. Doc. 102 at 9. But Louisiana must

justify its laws and public policy apart from tradition. All heterosexual couples with a valid

marriage license from another jurisdiction—whether they are in traditional marriages, common

law marriages, underage marriages, proxy marriages, first-cousin marriages, marriages between

the infertile, or any other sort of marriage arrangement—enjoy a rebuttable presumption of

validity under Louisiana's doctrine of favor matrimonii. See Ghassemi v. Ghassemi, 2007-1927,

pp. 9-10 (La. App. 1 Cir. 10/15/08), 998 So. 2d 731, 738. Same-sex couples do not receive this

presumption because of the Anti-Recognition Laws enacted in 1999 and 2004. The State has not

put forward any legitimate rationale for this discrimination.

Further, the discrimination raises due process concerns. Before the laws were enacted,

the decision whether to recognize a same-sex marriage would have rested with a judge or state

official, who could weigh any competing public policy interests against the interests of the

couple and any affected children. The sole purpose of the Anti-Recognition Laws is to eliminate

this discretion. Louisiana denies the opportunity for a fair hearing to same-sex couples, and only

same-sex couples; a court that enforces these Louisiana laws is categorically bound to deny

recognition. Indeed, Defendants submitted affidavits stating that under the Anti-Recognition

Laws they have no discretion to recognize the marriage of a same-sex couple.1 This is a

discrimination of an unusual character that violates equal protection and due process.

1

See Affidavit of Hon. Thomas A. ("Tim") Barfield, Jr., Rec. Doc. 84-4 at ¶ 8 ("the Department must abide by the laws of the State of Louisiana, and . . . said laws expressly prohibit Louisiana courts and public officials from recognizing for any purpose a purported marriage between persons of the same sex


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B. No Sufficient Rationale Justifies the Anti-Recognition Laws.

Defendants again offer their "natural procreat[ion]" and "social consensus"

rationales for the Anti-Recognition Laws. Rec. Doc. 102 at 15-18. Neither can survive

constitutional scrutiny, even if this Court applies rational basis review. All three of the most

recent federal district decisions reject procreation-based rationales for same-sex marriage bans.

E.g., Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (applying rational basis, holding that "any

governmental interest in responsible procreation is not advanced by denying marriage to gay and

lesbian couples"); Whitewood, 2014 U.S. Dist. LEXIS 68771, at *48 (applying heightened

scrutiny, holding that there is no relationship between Pennsylvania's same-sex ban and the

purported objectives of responsible procreation and child-rearing); Latta, 2014 U.S. Dist. LEXIS

66417, at *69-71 (applying heightened scrutiny, holding that Idaho's ban contravened Justice

Kennedy's warning that states may not ignore the welfare of children of same-sex couples). Nor

is Defendants' social-consensus rationale sufficient. Latta, 2014 U.S. Dist. LEXIS 66417, at *80

(deference to voters "has no application . . . where voters imposed a purposefully discriminatory

policy that undermines a fundamental right").

C. Plaintiffs Seek Recognition of their Fundamental Right to Marry, Not a New Right of "Same-Sex Marriage," and Strict Scrutiny Applies.

Defendants seemingly do not dispute the existence of a fundamental right to marry but

argue that gays and lesbians have no "generalized right to marry" and that Plaintiffs seek

recognition of a new right—"the right to marry someone of the same sex." Rec. Doc. 102 at 19

contracted in another jurisdiction."); Affidavit of Hon. Kathy Kliebert, Rec. Doc. 84-5 at ¶¶ 6-7, 9-10 ("my department and its divisions and offices are prohibited from authorizing and/or recognizing under any provision of the Louisiana Children’s Code or any other provision of Louisiana law the Louisiana adoption of a child by two persons of the same sex based on their out-of-state same-sex marriage."); Affidavit of Hon. Devin George, Rec. Doc. 84-6 at ¶¶ 7, 9 ("my office is prohibited from issuing a birth certificate recognizing two persons of the same sex as the parents of a child based on their same-sex marriage contracted in another jurisdiction.").


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(emphasis in original). Defendants' argument ignores Supreme Court precedent that establishes

an "unembellished right to marry." Latta, 2014 U.S. Dist. LEXIS 66417, at *37 ("This 'new

right' argument attempts to narrowly parse a right that the Supreme Court has framed in

remarkably broad terms.").

The right to marry is fundamental and deeply rooted. See, e.g., Meyer v. Nebraska, 262

U.S. 390, 399 (1923). The Supreme Court has repeatedly invalidated laws that infringe this right.

In Loving v. Virginia, the Court held that "the freedom to marry or not marry[] a person of

another race resides with the individual and cannot be infringed by the State." 388 U.S. 1, 12

(1967). The Court reaffirmed the right to marry in Zablocki v. Redhail, striking down a

Wisconsin law that required a resident to seek court permission to marry when the resident had

children not in his custody. 434 U.S. 374 (1978). In Turner v. Safley, recognizing the emotional

and spiritual significance of marriage and the benefits that flow from it, the Court struck down a

law restricting inmates' right to marry. 482 U.S. 78, 95-96 (1987) ("These incidents of marriage,

like the religious and personal aspects of marriage commitment, are unaffected by the fact of

confinement, or the pursuit of legitimate penological objectives.").

Like all citizens, gay and lesbian individuals enjoy the right to marry. An individual does

not forfeit fundamental rights when coming out of the closet. See Romer, 517 U.S. at 635-36;

Lawrence v. Texas, 539 U.S. 558, 574 (2003). Lawrence observed that "our laws and tradition

afford constitutional protection to personal decisions relating to marriage, procreation,

contraception, family relationships, child rearing, and education." 539 U.S. at 574. The Court

concluded that "[p]ersons in a homosexual relationship may seek autonomy for these purposes,

just as heterosexual persons do." Id. In Windsor, the Court invalidated Section 3 of DOMA

because the federal government's definition of marriage as encompassing only different-sex


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relationships unconstitutionally interfered "with the equal dignity of same-sex marriages

recognized by states." 133 S. Ct. at 2693.

The Supreme Court has consistently venerated the right to marry "as opposed to a sub-

right tied to the facts of the case." Latta, 2014 U.S. Dist. LEXIS 66417, at *37. "Loving was no

more about the 'right to interracial marriage' than Turner was about the 'prisoner's right to marry'

or Zablocki was about the 'dead-beat dad's right to marry.'" Id. These cases recognized that the

fundamental right to marry extends to all citizens:

If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State.

Latta, 2014 U.S. Dist. LEXIS 66417 at *38-39. Laws that infringe on the right to marry must be

narrowly tailored to promote a legitimate governmental interest, but the Anti-Recognition Laws

are not. Louisiana's categorical refusal to recognize the Plaintiffs' valid marriages

unconstitutionally infringes their fundamental right to marry.

D. Heightened Scrutiny Applies in the Equal Protection Analysis.

Defendants claim that Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004), and Romer

v. Evans, 517 U.S. at 633, mandate that this Court apply rational basis review. Rec. Doc. 102 at

6-7. But neither case held that sexual orientation could never be subject to heightened scrutiny.

(And while both courts applied rational basis review, in both cases sexual orientation

classifications were held to be impermissible.)

Even pretermitting whether the Supreme Court applied heightened scrutiny in Windsor,

see Pls.' Mem. Opp., Rec. Doc. 100 at 3, Defendants have not addressed the indicia used to

determine whether heightened scrutiny applies: (1) whether the group has been subjected to "a

history of purposeful unequal treatment," Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976);


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(2) whether the group possesses a characteristic "that frequently bears no relation to ability to

perform or contribute to society," City of Cleburne, Tex v. Cleburne Living Ctr., 473 U.S. 432,

440-41 (1985); (3) whether the group exhibits "obvious, immutable, or distinguishing

characteristics that define them as a discrete group," Bowen v. Gilliard, 483 U.S. 587, 602 (1987)

(internal citation and quotation marks omitted); and (4) whether the group is "a minority or

politically powerless," id. Defendants do not argue that sexual orientation is mutable2 or that it

bears a relationship to a person's ability to participate in society. Nor have Defendants

commented on Louisiana's history of discrimination against its gay and lesbian citizens, whose

lack of political power is underscored by the Louisiana Legislature's recent rejection of

legislation prohibiting housing discrimination based on sexual orientation and refusal to repeal

unconstitutional anti-sodomy laws. Defendants do not refute these facts. All four factors

indicate that Plaintiffs are members of a class subject to heightened scrutiny.

Finally, the laws are subject to heightened scrutiny because they discriminate on the basis

of sex. Plaintiffs' analogy to the racial classification at issue in Loving is apt. Just as the anti-

miscegenation laws discriminated on the basis of race, so too do these laws discriminate on the

basis of sex. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013) ("the court finds

that the fact of equal application to both men and women does not immunize Utah's Amendment

3 from the heightened burden of justification that the Fourteenth Amendment requires of state

laws drawn according to sex"), appeal docketed, No. 13-4178 (10th Cir.). Further, the laws are

rooted in impermissible sex stereotypes about the role of men and women within the family.

See, e.g., Amicus of Prof. Hawkins et al., Rec. Doc. 94 at 15 (arguing that "marriage is a primary

2 Defendants make a fleeting reference to "sexual preference," Rec. Doc. 102 at 14, insinuating that sexual

orientation is not an immutable characteristic but rather a changeable part of a person's identity. Nevertheless, Defendants do not dispute this factor.


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means of shaping men's identities and behaviors" because masculinity depends on a husband

being perceived as the "provider" and protector of a family). And while Defendants suggest that

the burden is on Plaintiffs to show a discriminatory motive, Rec. Doc. 102 at 14, a "plaintiff who

claims that a governmental classification explicitly based on sex violates the Equal Protection

Clause . . . does not have to show discriminatory intent." Doe ex rel. Doe v. Vermilion Parish

Sch. Bd., 421 F. App'x 366, 372 (5th Cir. 2011). If Plaintiff Jackie Brettner were a man, her

marriage to Lauren Brettner would be recognized by the State of Louisiana, and she would be

recognized as the parent of their child born during the marriage. Because of her sex, the state

refuses to recognize her marriage or her parental rights. This is sex discrimination subject to

heightened scrutiny.

II. CONCLUSION

Plaintiffs include six committed, loving couples who crossed state lines to solemnize

their commitment to one another. Louisiana's Anti-Recognition Laws effectively invalidate their

marriages when they cross the Louisiana border. The laws strip them of all incidents of marriage

and prevent them from establishing legally recognized two-parent households for their children.

Defendants have argued that that these couples can contract around the Anti-Recognition Laws,

but the undisputed facts demonstrate that is untrue. A private agreement cannot circumvent

Louisiana's adoption, birth certificate, or tax laws. Nor may a private contract alleviate the

stigma these laws place on same-sex couples and their children. See Windsor¸ 133 S. Ct. at

2693.

Defendants have offered no rational justification for the Anti-Recognition Laws, and they

cannot survive rational basis review, let alone heightened scrutiny. These laws serve only to

institutionalize and sanction discrimination against gays and lesbians. This Court should follow

Supreme Court precedent and the reasoning of the thirteen other federal district courts who have


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addressed same-sex marriage issues since Windsor. "The logic of these precedents virtually

compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they

seek the benefits and responsibilities of civil marriage." Latta, 2014 U.S. Dist. LEXIS 66417 at

*82. Thus, Plaintiffs pray that the Court grant their Motion for Partial Summary Judgment and

hold that Louisiana's Anti-Recognition Laws are unconstitutional.













I hereby certify that on this 2nd day of June, 2014, the foregoing Reply

Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment has been served

upon all counsel of record by the Court's CM/ECF system.



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Plaintiffs

v.


Defendants

*************

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327

SECTION F(5)



REF: ALL CASES

*************************************** *

ORDER

Considering the Motion for Leave to File Reply Memorandum in Support of

Plaintiffs' Motion for Partial Summary Judgment, it is ORDERED that:

The Motion is GRANTED. Plaintiffs may file their reply memorandum into the

record.

New Orleans, Louisiana, this ____ day of June, 2014.

___________________________________________________UNITED STATES DISTRICT JUDGE

4th


14-31037.1552

1159284v3

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA


Plaintiffsv.


Defendants

*************

CIVIL ACTION

NO. 13-5090 C/W 14-97 & 14-327SECTION F(5)



REF: ALL CASES*************************************** *

PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs file this Reply Memorandum in support of their Motion for Partial Summary

Judgment. Rec. Doc. 86.

I. LAW AND ARGUMENT

In May, three more federal district courts held that state laws prohibiting the celebration

or recognition of same-sex marriages violated the Equal Protection or Due Process Clauses.

Whitewood v. Wolf, No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS 68771, at *49 (M.D. Pa. May 20,

2014) (Pennsylvania's statutory ban on same-sex marriage violated the Equal Protection and Due

Process Clauses); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 U.S. Dist. LEXIS 68171, at

*46 (D. Or. May 19, 2014) (Oregon's constitutional amendment banning same-sex marriage,

passed by voters in 2004, violated the Equal Protection Clause); Latta v. Otter, No. 1:13-cv-

00482-CWD, 2014 U.S. Dist. LEXIS 66417, at *37 (D. Idaho May 13, 2014) (Idaho's bans,

including a provision of the Idaho constitution passed by voters in 2006, violated the Equal

Protection and Due Process Clauses). Louisiana's laws barring recognition of same-sex

marriages should fare no better.


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A. Louisiana Must Exercise Its Power over Domestic Relations in Compliance with the Fourteenth Amendment.

1. The Windsor Majority Expressly Disclaimed Federalism as the Rationale for its Ruling.

Defendants rely heavily on a misinterpretation of United States v. Windsor, 133 S. Ct.

2675 (2013). Defendants argue that Plaintiffs oversimplify Windsor and that Windsor

overturned DOMA Section 3 on federalism, not equal protection grounds. Rec. Doc. 102 at 5.

The Supreme Court did not hold in Windsor that state regulation of marriage is beyond the scope

of the Fourteenth Amendment. Though the Windsor majority discussed why DOMA intruded on

states' traditional power to govern marriage, the majority rejected federalism as its rationale:

Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism.

Id. at 2692 (emphasis added). Rather, the Court's holding was grounded in equal protection and

due process: Congress's departure from its traditional reliance on state law to define marriage

suggested a "[d]iscrimination[] of an unusual character" with a purpose "to impose restrictions

and disabilities." Id. "The resulting injury and indignity" was "a deprivation of an essential part

of the liberty protected by the Fifth Amendment." Id. Justice Scalia, joined by Justice Thomas,

acknowledged in his dissent that the opinion "formally disclaimed reliance on principles of

federalism" and called it "pretense" that the majority's rationale would be limited to only the

federal government and DOMA. Id. at 2705; see also id. ("the opinion starts with seven full

pages about the traditional power of States to define domestic relations—initially fooling many

readers into thinking that this is a federalism opinion"). Thus, to adopt the Defendants' position

that federalism, not equal protection, drove the Windsor majority, the Court would have to reject

the view of seven Supreme Court justices.


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2. Schuette Did Not Abrogate Prior Precedent Holding that a Majority Vote May Not Infringe Minorities' ConstitutionalRights.

Defendants contend that Plaintiffs' call for equal protection and due process asks the

Court to "constitutionalize the issue [of whether to recognize same-sex marriages] and nullify

Louisiana's authority to decide it." Rec. Doc. 102 at 3. But Defendants' argument renders the

Fourteenth Amendment's guarantee of equal protection and fundamental liberty interests subject

to majority impulse, making it effectively meaningless.

Voter approval of the Louisiana constitutional provision does not immunize it from equal

protection and due process scrutiny. Defendants assert that it is "the responsibility of voters—

not the courts—to decide the issue," Rec. Doc. 102 at 4, and cite the Supreme Court's recent

decision in Schuette v. BAMN, 134 S. Ct. 1623 (2014), for the proposition that a court should not

find a state referendum unconstitutional. Schuette does not establish a state's right to violate the

Fourteenth Amendment by majority vote. The case involved the Michigan electorate's vote to

stop affirmative action in school admissions. Id. at 1630. It did not involve state efforts to

institutionalize discrimination. Rather, Schuette stands for the "unremarkable proposition that

voters can and should be allowed to end their state's discriminatory policies." Latta, 2014 U.S.

Dist. LEXIS 66417 at *80 (emphasis added) (discussing Schuette). Schuette in no way abrogates

prior Supreme Court precedent affirming that a majority of voters cannot deprive minorities of

fundamental rights. See, e.g., Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-

37 (1964) ("[a] citizen's constitutional rights can hardly be infringed simply because a majority

of the people choose that it be"); W.Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)

("fundamental rights may not be submitted to vote; they depend on the outcome of no

elections"); see also Romer v. Evans, 517 U.S. 620 (1996) (overturning voter-approved Colorado

constitutional amendment targeting gay and lesbian individuals).


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3. Louisiana May Not Single Out Same-Sex Couples for CategoricalNonrecognition Without Constitutional Justification.

Defendants argue that the Anti-Recognition Laws are not a discrimination of an

"unusual" character because Louisiana could decline to recognize same-sex marriages as

contrary to public policy under traditional comity rules. Rec. Doc. 102 at 9. But Louisiana must

justify its laws and public policy apart from tradition. All heterosexual couples with a valid

marriage license from another jurisdiction—whether they are in traditional marriages, common

law marriages, underage marriages, proxy marriages, first-cousin marriages, marriages between

the infertile, or any other sort of marriage arrangement—enjoy a rebuttable presumption of

validity under Louisiana's doctrine of favor matrimonii. See Ghassemi v. Ghassemi, 2007-1927,

pp. 9-10 (La. App. 1 Cir. 10/15/08), 998 So. 2d 731, 738. Same-sex couples do not receive this

presumption because of the Anti-Recognition Laws enacted in 1999 and 2004. The State has not

put forward any legitimate rationale for this discrimination.

Further, the discrimination raises due process concerns. Before the laws were enacted,

the decision whether to recognize a same-sex marriage would have rested with a judge or state

official, who could weigh any competing public policy interests against the interests of the

couple and any affected children. The sole purpose of the Anti-Recognition Laws is to eliminate

this discretion. Louisiana denies the opportunity for a fair hearing to same-sex couples, and only

same-sex couples; a court that enforces these Louisiana laws is categorically bound to deny

recognition. Indeed, Defendants submitted affidavits stating that under the Anti-Recognition

Laws they have no discretion to recognize the marriage of a same-sex couple.1 This is a

discrimination of an unusual character that violates equal protection and due process.

1 See Affidavit of Hon. Thomas A. ("Tim") Barfield, Jr., Rec. Doc. 84-4 at ¶ 8 ("the Department must abide

by the laws of the State of Louisiana, and . . . said laws expressly prohibit Louisiana courts and public officials from recognizing for any purpose a purported marriage between persons of the same sex


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B. No Sufficient Rationale Justifies the Anti-Recognition Laws.

Defendants again offer their "natural procreat[ion]" and "social consensus"

rationales for the Anti-Recognition Laws. Rec. Doc. 102 at 15-18. Neither can survive

constitutional scrutiny, even if this Court applies rational basis review. All three of the most

recent federal district decisions reject procreation-based rationales for same-sex marriage bans.

E.g., Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (applying rational basis, holding that "any

governmental interest in responsible procreation is not advanced by denying marriage to gay and

lesbian couples"); Whitewood, 2014 U.S. Dist. LEXIS 68771, at *48 (applying heightened

scrutiny, holding that there is no relationship between Pennsylvania's same-sex ban and the

purported objectives of responsible procreation and child-rearing); Latta, 2014 U.S. Dist. LEXIS

66417, at *69-71 (applying heightened scrutiny, holding that Idaho's ban contravened Justice

Kennedy's warning that states may not ignore the welfare of children of same-sex couples). Nor

is Defendants' social-consensus rationale sufficient. Latta, 2014 U.S. Dist. LEXIS 66417, at *80

(deference to voters "has no application . . . where voters imposed a purposefully discriminatory

policy that undermines a fundamental right").

C. Plaintiffs Seek Recognition of their Fundamental Right to Marry, Not a New Right of "Same-Sex Marriage," and Strict Scrutiny Applies.

Defendants seemingly do not dispute the existence of a fundamental right to marry but

argue that gays and lesbians have no "generalized right to marry" and that Plaintiffs seek

recognition of a new right—"the right to marry someone of the same sex." Rec. Doc. 102 at 19

contracted in another jurisdiction."); Affidavit of Hon. Kathy Kliebert, Rec. Doc. 84-5 at ¶¶ 6-7, 9-10 ("my department and its divisions and offices are prohibited from authorizing and/or recognizing under any provision of the Louisiana Children’s Code or any other provision of Louisiana law the Louisiana adoption of a child by two persons of the same sex based on their out-of-state same-sex marriage."); Affidavit of Hon. Devin George, Rec. Doc. 84-6 at ¶¶ 7, 9 ("my office is prohibited from issuing a birth certificate recognizing two persons of the same sex as the parents of a child based on their same-sex marriage contracted in another jurisdiction.").


14-31037.1557

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(emphasis in original). Defendants' argument ignores Supreme Court precedent that establishes

an "unembellished right to marry." Latta, 2014 U.S. Dist. LEXIS 66417, at *37 ("This 'new

right' argument attempts to narrowly parse a right that the Supreme Court has framed in

remarkably broad terms.").

The right to marry is fundamental and deeply rooted. See, e.g., Meyer v. Nebraska, 262

U.S. 390, 399 (1923). The Supreme Court has repeatedly invalidated laws that infringe this right.

In Loving v. Virginia, the Court held that "the freedom to marry or not marry[] a person of

another race resides with the individual and cannot be infringed by the State." 388 U.S. 1, 12

(1967). The Court reaffirmed the right to marry in Zablocki v. Redhail, striking down a

Wisconsin law that required a resident to seek court permission to marry when the resident had

children not in his custody. 434 U.S. 374 (1978). In Turner v. Safley, recognizing the emotional

and spiritual significance of marriage and the benefits that flow from it, the Court struck down a

law restricting inmates' right to marry. 482 U.S. 78, 95-96 (1987) ("These incidents of marriage,

like the religious and personal aspects of marriage commitment, are unaffected by the fact of

confinement, or the pursuit of legitimate penological objectives.").

Like all citizens, gay and lesbian individuals enjoy the right to marry. An individual does

not forfeit fundamental rights when coming out of the closet. See Romer, 517 U.S. at 635-36;

Lawrence v. Texas, 539 U.S. 558, 574 (2003). Lawrence observed that "our laws and tradition

afford constitutional protection to personal decisions relating to marriage, procreation,

contraception, family relationships, child rearing, and education." 539 U.S. at 574. The Court

concluded that "[p]ersons in a homosexual relationship may seek autonomy for these purposes,

just as heterosexual persons do." Id. In Windsor, the Court invalidated Section 3 of DOMA

because the federal government's definition of marriage as encompassing only different-sex


14-31037.1558

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relationships unconstitutionally interfered "with the equal dignity of same-sex marriages

recognized by states." 133 S. Ct. at 2693.

The Supreme Court has consistently venerated the right to marry "as opposed to a sub-

right tied to the facts of the case." Latta, 2014 U.S. Dist. LEXIS 66417, at *37. "Loving was no

more about the 'right to interracial marriage' than Turner was about the 'prisoner's right to marry'

or Zablocki was about the 'dead-beat dad's right to marry.'" Id. These cases recognized that the

fundamental right to marry extends to all citizens:

If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State.

Latta, 2014 U.S. Dist. LEXIS 66417 at *38-39. Laws that infringe on the right to marry must be

narrowly tailored to promote a legitimate governmental interest, but the Anti-Recognition Laws

are not. Louisiana's categorical refusal to recognize the Plaintiffs' valid marriages

unconstitutionally infringes their fundamental right to marry.

D. Heightened Scrutiny Applies in the Equal Protection Analysis.

Defendants claim that Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004), and Romer

v. Evans, 517 U.S. at 633, mandate that this Court apply rational basis review. Rec. Doc. 102 at

6-7. But neither case held that sexual orientation could never be subject to heightened scrutiny.

(And while both courts applied rational basis review, in both cases sexual orientation

classifications were held to be impermissible.)

Even pretermitting whether the Supreme Court applied heightened scrutiny in Windsor,

see Pls.' Mem. Opp., Rec. Doc. 100 at 3, Defendants have not addressed the indicia used to

determine whether heightened scrutiny applies: (1) whether the group has been subjected to "a

history of purposeful unequal treatment," Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976);


14-31037.1559

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(2) whether the group possesses a characteristic "that frequently bears no relation to ability to

perform or contribute to society," City of Cleburne, Tex v. Cleburne Living Ctr., 473 U.S. 432,

440-41 (1985); (3) whether the group exhibits "obvious, immutable, or distinguishing

characteristics that define them as a discrete group," Bowen v. Gilliard, 483 U.S. 587, 602 (1987)

(internal citation and quotation marks omitted); and (4) whether the group is "a minority or

politically powerless," id. Defendants do not argue that sexual orientation is mutable2 or that it

bears a relationship to a person's ability to participate in society. Nor have Defendants

commented on Louisiana's history of discrimination against its gay and lesbian citizens, whose

lack of political power is underscored by the Louisiana Legislature's recent rejection of

legislation prohibiting housing discrimination based on sexual orientation and refusal to repeal

unconstitutional anti-sodomy laws. Defendants do not refute these facts. All four factors

indicate that Plaintiffs are members of a class subject to heightened scrutiny.

Finally, the laws are subject to heightened scrutiny because they discriminate on the basis

of sex. Plaintiffs' analogy to the racial classification at issue in Loving is apt. Just as the anti-

miscegenation laws discriminated on the basis of race, so too do these laws discriminate on the

basis of sex. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013) ("the court finds

that the fact of equal application to both men and women does not immunize Utah's Amendment

3 from the heightened burden of justification that the Fourteenth Amendment requires of state

laws drawn according to sex"), appeal docketed, No. 13-4178 (10th Cir.). Further, the laws are

rooted in impermissible sex stereotypes about the role of men and women within the family.

See, e.g., Amicus of Prof. Hawkins et al., Rec. Doc. 94 at 15 (arguing that "marriage is a primary

2 Defendants make a fleeting reference to "sexual preference," Rec. Doc. 102 at 14, insinuating that sexual

orientation is not an immutable characteristic but rather a changeable part of a person's identity. Nevertheless, Defendants do not dispute this factor.


14-31037.1560

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means of shaping men's identities and behaviors" because masculinity depends on a husband

being perceived as the "provider" and protector of a family). And while Defendants suggest that

the burden is on Plaintiffs to show a discriminatory motive, Rec. Doc. 102 at 14, a "plaintiff who

claims that a governmental classification explicitly based on sex violates the Equal Protection

Clause . . . does not have to show discriminatory intent." Doe ex rel. Doe v. Vermilion Parish

Sch. Bd., 421 F. App'x 366, 372 (5th Cir. 2011). If Plaintiff Jackie Brettner were a man, her

marriage to Lauren Brettner would be recognized by the State of Louisiana, and she would be

recognized as the parent of their child born during the marriage. Because of her sex, the state

refuses to recognize her marriage or her parental rights. This is sex discrimination subject to

heightened scrutiny.

II. CONCLUSION

Plaintiffs include six committed, loving couples who crossed state lines to solemnize

their commitment to one another. Louisiana's Anti-Recognition Laws effectively invalidate their

marriages when they cross the Louisiana border. The laws strip them of all incidents of marriage

and prevent them from establishing legally recognized two-parent households for their children.

Defendants have argued that that these couples can contract around the Anti-Recognition Laws,

but the undisputed facts demonstrate that is untrue. A private agreement cannot circumvent

Louisiana's adoption, birth certificate, or tax laws. Nor may a private contract alleviate the

stigma these laws place on same-sex couples and their children. See Windsor¸ 133 S. Ct. at

2693.

Defendants have offered no rational justification for the Anti-Recognition Laws, and they

cannot survive rational basis review, let alone heightened scrutiny. These laws serve only to

institutionalize and sanction discrimination against gays and lesbians. This Court should follow

Supreme Court precedent and the reasoning of the thirteen other federal district courts who have


14-31037.1561

- 10 -

1159284v3

addressed same-sex marriage issues since Windsor. "The logic of these precedents virtually

compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they

seek the benefits and responsibilities of civil marriage." Latta, 2014 U.S. Dist. LEXIS 66417 at

*82. Thus, Plaintiffs pray that the Court grant their Motion for Partial Summary Judgment and

hold that Louisiana's Anti-Recognition Laws are unconstitutional.













I hereby certify that on this 2nd day of June, 2014, the foregoing Reply

Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment has been served

upon all counsel of record by the Court's CM/ECF system.



14-31037.1562




Defendants

CIVIL ACTION



REF: ALL CASES

ORDER

Having considered Defendants’ Motion for Leave to File Reply Brief, it is

ORDERED that the motion is GRANTED.


________________________________________ UNITED STATES DISTRICT JUDGE

4th Hello This is a Test

June


14-31037.1563




Defendants

CIVIL ACTION



REF: ALL CASES

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF

PARTIAL SUMMARY JUDGMENT AND DISMISSAL

Plaintiffs’ opposition identifies no material fact disputes. See Doc. 100-5, ¶¶1-7.1

The Court may therefore resolve as a matter of law whether Louisiana’s refusal to

recognize plaintiffs’ same-sex marriages violates the Fourteenth Amendment.




To cut to the chase: if plaintiffs are right that states are constitutionally

compelled to recognize same-sex marriage, Windsor makes no sense. See Def. MSJ

(Doc. 84-1) 4-7; Def. Opp. (Doc. 102-1) 2-6 (discussing United States v. Windsor, 133

S. Ct. 2675 (2013)). Windsor’s nine-paragraph discussion of states’ “historical and

�� 1 Any disagreements in plaintiffs’ counter-statement do not pertain to material facts. Because Louisiana law is clear, it is immaterial that plaintiffs have no “independent knowledge” of defendants’ “understanding of Louisiana law.” Doc. 100-5, ¶¶9-11. Further, despite plaintiffs’ response (see id. ¶8), the parties do not disagree about the contractual remedies available to same-sex couples; defendants agree that “Louisiana law provides no mechanism to ‘contract’ for custody of a child.” Pl. Opp. (Doc. 100) 14.


14-31037.1564

� 2

essential authority to define the marital relation,” id. at 2692, was wasted ink. Its

praise of New York’s “statewide deliberative process that enabled its citizens to

discuss and weigh arguments for and against same-sex marriage,” id. at 2689, was

window-dressing. Accepting plaintiffs’ claims would effectively overrule Windsor.

A. Windsor reaffirmed states’ authority to define marriage.

Plaintiffs respond that “Windsor did not authorize states to violate the

Fourteenth Amendment.” Pl. Opp. 20. No one says it did. The point is that Windsor

struck down DOMA because the states—not the federal government—decide

whether to recognize same-sex marriage. This does not create a “domestic relations

exception” to the Fourteenth Amendment, Pl. Opp. 19, but simply recognizes that

defining marriage falls within the “State’s broader authority to regulate the subject

of domestic relations.” 133 S. Ct. at 2691.

Plaintiffs candidly assert that the Constitution “establish[es] a one-way ratchet”

allowing states to recognize same-sex marriage but denying them authority not to.

Pl. Opp. 20. But that argument ignores Windsor’s respect for the responsibility of

state citizens to “discuss and weigh arguments for and against same-sex marriage.”

133 S. Ct. at 2692, and it ignores the axiom that “[i]n the search for enlightened

public policy, individual States and communities are free to experiment with a

variety of approaches to public issues.” EXEC. ORDER NO. 12612, 52 FED. REG. 41685,

§ 2(f) (Oct. 26, 1987) (Pres. Reagan).

B. Plaintiffs’ claims defy the Full Faith and Credit Clause.

Plaintiffs also miss the relevance of the Full Faith and Credit Clause (FFC). The

point is not that FFC trumps the Fourteenth Amendment, see Pl. Opp. 22 (asserting


14-31037.1565

� 3

that “the amendment controls” in any “conflict” with FFC), but rather that

plaintiffs’ claims are functionally identical to the claim that Louisiana must give

full faith and credit to same-sex marriages. (Indeed, the Robicheaux plaintiffs raise

an FFC claim, see Def. MSJ 10). It is settled, however, that FFC does not compel

states to recognize out-of-state marriages. Def. MSJ 7-10.

While accepting this principle as “not disputed,” Pl. Opp. 22, plaintiffs demand

additional warrant for Louisiana’s marriage policy. But Windsor itself explained

why states—who have a “rightful and legitimate concern in the marital status of

persons domiciled within [their] borders,” 133 S. Ct. at 2691—may reasonably

decide not to recognize same-sex marriage. This decision is a “far-reaching legal

acknowledgment,” requiring “the community’s considered perspective,” and

demanding “formation of consensus” among citizens. Id. at 2692-93. Plaintiffs

reduce Louisiana’s own decision to “arbitrarily target[ing] a group for

discrimination,” Pl. Opp. 22, but Windsor called it “a proper exercise of … sovereign

authority within our federal system.” 133 S. Ct. at 2692.2

�� 2 Moreover, DOMA section 2 is not an “affirmative defense,” Pl. Opp. 22-23, but simply confirms that states are not “compel[led] … to substitute the statutes or other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Def. MSJ 10 (quoting Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Even assuming section 2 is an “affirmative defense,” however, defendants have not waived it because (1) they generally denied that FFC compels recognition of same-sex marriages (see Doc. 80 ¶62); and (2) they raised section 2 soon enough not to prejudice plaintiffs. See, e.g., Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (no waiver if “defendant raised the issue at a pragmatically sufficient time and [the plaintiff] was not prejudiced in its ability to response”) (quotes omitted).


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� 4

II. LOUISIANA’S MARRIAGE LAWS SATISFY EQUAL PROTECTION.

A. Binding precedent requires rational-basis review.

Louisiana’s laws trigger rational-basis review under binding precedent. Def.

MSJ 11-12; Def. Opp. 6-11. The “doctrinal evolution” plaintiffs point to in Romer,

Lawrence, and Windsor (Pl. Opp. 5) fails to support heightened scrutiny: Windsor

applied the same rational-basis review in Romer, Def. Opp. 7-8, and Lawrence was

not an equal protection case. The only post-Windsor development plaintiffs cite—the

SmithKline decision, Pl. Opp. 4-5 n.6—misreads Windsor and is under a sua sponte

en banc call. Id. at 8 (discussing SmithKline Beecham Corp. v. Abbott Labs., 740

F.3d 471 (9th Cir. 2013)). Finally, plaintiffs are wrong that, “[l]ike DOMA,”

Louisiana laws “create two contradictory marriage regimes within the same State.”

Pl. Opp. 4. DOMA usurped the states’ domestic relations authority, while Louisiana

exercised that authority. So even assuming Windsor applied something north of

rational-basis to a federal marriage definition, there would be no warrant for

applying it to a state definition.3

B. Louisiana’s marriage laws further critical government interests.

Louisiana’s marriage laws further two critical government interests. First, a

primary purpose of marriage is to “link children with an intact family formed by

their biological parents.” Def. Opp. 15. Thus it is rational to define marriage as a

man-woman union because “it remains true that the vast majority of children are

born as a result of a sexual relationship between a man and a woman.” Hernandez �� 3 Plaintiffs initially urged heightened scrutiny based on sex discrimination, Pl. MSJ (Doc. 86-1) 15, but omit the argument in their opposition. In any event, Louisiana’s marriage laws do not discriminate on the basis of sex. Def. Opp. 11-14.


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� 5

v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006). Second, Louisiana constitutionalized its

definition “to ensure that a change as profound as altering the definition of

marriage would occur only through wide social consensus.” Def. Opp. 17. That

decision was rational because enlarging the historic definition is a “far-reaching”

step with “substantial societal impact” that demands citizen “consensus.” Windsor,

133 S. Ct. at 2692, 2693.

Plaintiffs dismiss these rationales as “specious.” Pl. Opp. 1. But their arguments

come nowhere near to showing that Louisiana’s laws are “so unrelated to the

achieve of any combination of legitimate purposes that [the Court] can only

conclude [Louisiana’s] actions were irrational.” Doe v. Jindal, 851 F.Supp.2d 995,

1005-06 (E.D. La. 2012) (quotes omitted).4

1. Louisiana’s laws link children with their biological parents.

Primarily, plaintiffs claim Louisiana’s marriage laws are irrational because

defendants “do not explain how denying recognition to same-sex marriages has any

effect on heterosexuals whatsoever.” Pl. Opp. 8. They say Louisiana must prove that

recognizing same-sex marriage will “‘influence … whether heterosexual couples will

marry’” and, conversely, that forbidding it “‘will increase the number of couples

�� 4 Oddly, plaintiffs assert that “[d]efendants offer no evidence to support [Louisiana] laws beyond [defendants’] three affidavits.” Pl. Opp. 1. But the Civil Code articles and commentary set forth the objectives of Louisiana marriage and family law, Def. MSJ 12-17, and the Louisiana Supreme Court has exhaustively interpreted the legislative history of the 2004 marriage amendment. Forum for Equality PAC v. McKeithen, 2004-2477, pp. 14-32 (La. 1/19/05); 893 So.2d 715, 725-37. This is more than enough to sustain summary judgment, particularly under rational-basis. See Heller v. Doe, 509 U.S. 312, 320 (1993) (“[a] State … has no obligation to produce evidence to sustain the rationality of a statutory classification,” but instead “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it”) (quotes omitted).


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� 6

choosing to enter into opposite-sex marriages.’” Id. at 8-9 (quoting De Leon v. Perry,

935 F.Supp.2d 632, 653 (W.D. Tex. 2014); Goodridge v. Dep’t of Pub. Health, 798

N.E.2d 941, 963 (Mass. 2003)). Plaintiffs are wrong. They would require Louisiana

not only to prove a negative, but to predict the future. No level of scrutiny requires

the power of prophecy—certainly not rational basis, in which a “legislative choice …

may be based on rational speculation unsupported by evidence or empirical data.”

F.C.C. v. Beach Comm., Inc., 508 U.S. 307, 315 (1993).5

Predicting the social effects of redefining marriage is reserved to the democratic

process. Windsor said so. Unlike plaintiffs, Windsor reposed faith in the wisdom of

“citizens to discuss and weigh arguments for and against same-sex marriage.” 133

S. Ct. at 2689. Unlike plaintiffs, Windsor acknowledged that a state’s citizens

“understand[ ] that marriage is more than a routine classification” whose shape has

“substantial societal impact … in the daily lives and customs of its people.” Id. at

2692, 2693. And, unlike plaintiffs, Windsor understood that—in a nation where

people disagree on this profound issue—altering the longstanding definition of

marriage demands a genuine “consensus” of a state’s citizens. Id. at 2692.

Plaintiffs also claim Louisiana’s man-woman definition does not rationally link

children to biological parents because same-sex couples can have children “through

adoption or assistive reproductive technology.” Pl. Opp. 10; see also id. at 2 n.3 (two

plaintiffs used the “method of conception … known as reciprocal in vitro

�� 5 See also Planned Parenthood v. Abbott, __ F.3d __, 2014 WL 1257965 at *7 (5th Cir. Mar. 27, 2014) (“Because [rational basis] does not lend itself to an evidentiary inquiry in court, the state is not required to ‘prove’ that the objective of the law would be fulfilled.”)


14-31037.1569

� 7

fertilization”). Plaintiffs are again mistaken. First, they cannot deny that “the vast

majority of children are born from the union of opposite-sex couples.” Hernandez,

855 N.E.2d at 7. Merely because Louisiana’s classification does not include every

other adoptive or reproductive scenario does not make it irrational. LeClerc v. Webb,

419 F.3d 405, 420 (5th Cir. 2005) (rational-basis review “seek[s] only the assurance

that the classification at issue bears some fair relationship to a legitimate public

purpose”) (quotes omitted). Second, plaintiffs overlook that Louisiana has

compelling interests in regulating adoption and reproductive technology. Louisiana

regulates both subjects to reinforce its marriage and family laws.6 Plaintiffs would

brand Louisiana’s family law “irrational” simply because it does not embrace every

new iteration of reproductive technology.7 That cannot be right, however, given

states’ “authority to regulate the subject of domestic relations with respect to … the

protection of offspring.” Windsor, 133 S. Ct. at 2691 (quotes omitted).

2. Louisiana’s laws ensure consensus-based social change.

Instead of confronting Louisiana’s “social consensus” argument—which comes

directly from Windsor and Schuette (Def. MSJ 17-20; Def. Opp. 3-5, 17-18)—

plaintiffs spend five pages discussing desegregation decisions from the 1960s. Pl. �� 6 See LA. CHILD. CODE art. 1221 (allowing joint private adoptions only by “a married couple”); LA. R.S. 9:130 (IVF patients may renounce parental rights to embryo only “in favor of another married couple … willing and able to receive the [embryo]”); LA. CIV. CODE art. 188 (husband “may not disavow a child born to his wife as a result of an assisted conception to which he consented”). 7 For instance, regarding “reciprocal in vitro fertilization” (Pl. Opp. 2 n.3), Louisiana would recognize the maternity only of the woman who bore the child, not the woman who donated her egg. LA. CIV. CODE art. 184 cmt. a (“the mother of a child is the woman who gives birth to the child”); see also KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK at 388 (West 2013) (under article 184, “in the case of donated eggs, the birth mother is the legal mother even though the child has the DNA of another person”).


14-31037.1570

� 8

Opp. 15-19. They assert that Louisiana, by retaining its marriage definition, “has

determined to actively work against Plaintiffs in their struggle for equality,” just

“[a]s it did during desegregation.” Id. at 18. That is rhetoric, not argument.

Important as they were, the desegregation cases can be summarized in one

sentence: “The equal protection clause of the fourteenth amendment prevents any

invidious discrimination on the basis of race.” Lee v. Macon Cnty. Bd. of Ed., 448

F.2d 746, 753 (5th Cir. 1971) (citation omitted). But they do provide a helpful

contrast with this case. The desegregation cases involved strict scrutiny; this case

involves rational-basis review. The desegregation cases involved orchestrated

resistance to federal authority accompanied by “‘demonstrations, picketing, stone-

throwing, and turmoil,’” (Pl. Opp. 17 (quoting Bush v. Orleans Parish Sch. Bd., 308

F.2d 491, 494 (5th Cir. 1962)); this case involves a state’s citizens, peacefully voting.

Finally, the desegregation cases involved racial discrimination that violated “the

clear and central purpose of the Fourteenth Amendment,” Loving v. Virginia, 388

U.S. 1, 10 (1967); this case involves an aspect of marriage that “until recent years …

had been thought of by most people as essential to the very definition of that term

and to its role and function throughout the history of civilization.” Windsor, 133 S.

Ct. at 2689. The desegregation cases utterly fail to support plaintiffs’ claims.

III. LOUISIANA’S MARRIAGE LAWS SATISFY DUE PROCESS.

Plaintiffs’ due process claims fail because a right to marry someone of the same

sex is not “deeply rooted in this Nation’s history and tradition.” Washington v.

Glucksberg, 521 U.S. 702, 720-21 (1997); Def. MSJ 20-24; Def. Opp. 18-23. Plaintiffs

mistakenly say this right does not “break new ground,” Pl. Opp. 6, but Windsor said


14-31037.1571

� 9

New York’s adoption of same-sex marriage in 2011 involved “a new perspective, a

new insight.” 133 S. Ct. at 2689. No state recognized the right until 2003, and two-

thirds of the states do not recognize it today. Def. MSJ 1-2. The right therefore

cannot be “so rooted in the traditions and conscience of our people as to be ranked

as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

A careful description of the asserted right must include the fact that it involves

marrying a same-sex partner. Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505

(5th Cir. 2006) (right must be “carefully describe[d]”). But, far from optional, the

man-woman feature of marriage was thought “essential to the very definition … and

to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at

2689 (emphasis added). Plaintiffs must be “more precise” than invoking a generic

“right to marry.” Glucksberg, 520 U.S. at 722; Def. Opp. 19.

Plaintiffs respond that “[a]ll individuals share in fundamental rights.” Pl. Opp.

6. No one doubts that. But there is “a tradition of carefully formulating the interest

at stake in substantive-due-process cases” to discern whether a fundamental right

is asserted. Glucksberg, 520 U.S. at 722. Here, plaintiffs have not. Nor does that

analysis “repeat[ ] the mistake of Bowers” by “limiting the right too narrowly.” Pl.

Opp. 6; Bowers v. Hardwick, 478 U.S. 186 (1986). The same case that corrected

Bowers said it “d[id] not involve whether the government must give formal

recognition to any relationship that homosexual persons may enter.” Lawrence v.

Texas, 539 U.S. 558, 578 (2003).

Plaintiffs and amici also rely on the Supreme Court’s “right to marry” cases. Pl.


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� 10

Opp. 6, 12-13; Doc. 92. But those cases—which struck down marriage bans based on

incarceration, child support, and race, Def. Opp. 20-21—do not suggest a right to

marry regardless of a spouse’s sex. See Zablocki v. Redhail, 434 U.S. 374, 386 (1978)

(“right to marry” does not impact “every state regulation which relates in any way

to the incidents of or prerequisites for marriage”). Only five years after Loving—a

case heavily cited by plaintiffs and other courts, Def. MSJ 23-24; Def. Opp. 5-6—the

Supreme Court rejected a constitutional right to same-sex marriage. Baker v.

Nelson, 409 U.S. 810 (1972). In light of that, a right to marry someone of the same

sex cannot be “deeply rooted in this Nation’s history and tradition.” Glucksberg, 520

U.S. at 720-21 (quotes omitted).

CONCLUSION


judgment and motion to dismiss.






/s S. Kyle Duncan S. Kyle Duncan, Attorney for Defendants


14-31037.1573

TABLE OF CONTENTS Defendants’ Reply Brief .................................................................................................. 1

I. Plaintiffs would nullify Louisiana’s authority to define marriage. ................ 1

A. Windsor reaffirmed states’ authority to define marriage ............................. 2

B. Plaintiffs’ claims defy the Full Faith and Credit Clause .............................. 2

II. Louisiana’s marriage laws satisfy equal protection ........................................ 4

A. Binding precedent requires rational-basis review ........................................ 4 B. Louisiana’s marriage laws further critical government interests ............... 4

1. Louisiana’s laws link children with their biological parents .................. 5 2. Louisiana’s laws ensure consensus-based social change ........................ 7

III. Louisiana’s marriage laws satisfy due process ................................................ 8



14-31037.1574

� 2

TABLE OF AUTHORITIES Cases Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................................. 10 Bowers v. Hardwick, 478 U.S. 186 (1986) ................................................................................................... 9 Bush v. Orleans Parish Sch. Bd., 308 F.2d 491 (5th Cir. 1962) ..................................................................................... 8 De Leon v. Perry, 935 F.Supp.2d 632 (W.D. Tex. 2014) ........................................................................ 5 Doe v. Jindal, 851 F.Supp.2d 995 (E.D. La. 2012) ........................................................................... 5 F.C.C. v. Beach Comm., Inc., 508 U.S. 307 (1993) ................................................................................................... 6 Forum for Equality PAC v. McKeithen, 2004-2477 (La. 1/19/05); 893 So.2d 715 .................................................................... 5 Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003) ................................................................................................... 3 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) .................................................................................... 5 Heller v. Doe, 509 U.S. 312 (1993) ................................................................................................... 5 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ...................................................................................... 4, 6 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................................... 4, 9 LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005) ..................................................................................... 7 Lee v. Macon Cnty. Bd. of Ed., 448 F.2d 746 (5th Cir. 1971) ..................................................................................... 8


14-31037.1575

� 3

Loving v. Virginia, 388 U.S. 1 (1967) ................................................................................................. 8, 10 Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2006) ..................................................................................... 9 Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009) ..................................................................................... 3 Planned Parenthood v. Abbott, __ F.3d __, 2014 WL 1257965 (5th Cir. Mar. 27, 2014) ........................................... 6 Romer v. Evans, 517 U.S. 620 (1996) ................................................................................................... 4 Schuette v. BAMN, 134 S. Ct. 1623 (2014) ............................................................................................... 7 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013) ..................................................................................... 4 Snyder v. Massachusetts, 291 U.S. 97 (1934) ..................................................................................................... 9 United States v. Windsor, 133 S. Ct. 2675 (2013) ..................................................................................... passim Washington v. Glucksberg, 521 U.S. 702 (1997) .............................................................................................. 8-10 Zablocki v. Redhail, 434 U.S. 374 (1978) ................................................................................................. 10 Statutes Defense of Marriage Act, 110 Stat. 2419 ........................................................................................................ 2, 4 28 U.S.C. §1738C ............................................................................................................ 3 LA. CHILD. CODE art. 1221 .............................................................................................. 7 LA. CIV. CODE art. 184 .................................................................................................... 7


14-31037.1576

� 4

LA. R.S. 9:130 .................................................................................................................. 7 Constitutional Provisions U.S. CONST. art. IV ....................................................................................................... 2-3 U.S. CONST. amend. XIV ....................................................................................... passim LA. CONST. art. XII, § 15 ................................................................................................. 5 Other Authorities EXEC. ORDER NO. 12612, 52 FED. REG. 41685 ................................................................ 2 KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK ...................................................... 7


14-31037.1577




Plaintiffs

v.


Defendants

CIVIL ACTION

NO. 13-5090

SECTION F(5)



REF: ALL CASES

MOTION TO ENROLL AS CO-COUNSEL OF RECORD

NOW INTO COURT, comes J. MICHAEL JOHNSON, Attorney at Law, who

respectfully requests that he be allowed to enroll as co-counsel of record for

Defendants Tim Barfield, Secretary of the Louisiana Department of Revenue, Kathy

Kliebert, Secretary of the Louisiana Department of Health and Hospitals, and Devin

George, Louisiana State Registrar, in these proceedings. In accordance with Local

Rule 83.2.12, counsel for said defendants, S. Kyle Duncan, Special Assistant Attorney

General for the Louisiana Department of Justice, joins in this motion and consents

thereto.

Respectfully submitted this 10th day of June, 2014.

By: /s/ J. Michael Johnson

J. Michael Johnson

LA Bar Roll No. 26059

2250 Hospital Drive, Ste. 248

Bossier City, LA 71111

Phone: (318) 658-9456

Facsimile: (318) 658-9605



14-31037.1578


I hereby certify that on June 10, 2014, I electronically filed the foregoing with

the Clerk of Court by using the CM/ECF system, which will be electronically served

on all counsel of record.

By: /s/ J. Michael Johnson

J. Michael Johnson


14-31037.1579




Plaintiffs

v.


Defendants

CIVIL ACTION

NO. 13-5090

SECTION F(5)



REF: ALL CASES

ORDER

Having considered the Motion to Enroll as Co-Counsel of Record filed by J.

Michael Johnson, and consented to by counsel for defendants, S. Kyle Duncan, Special

Assistant Attorney General for the Louisiana Department of Justice, it is ORDERED

that the motion is GRANTED, and that J. Michael Johnson be and he is enrolled as

co-counsel of record in these proceedings for Defendants Tim Barfield, Secretary of

the Louisiana Department of Revenue, Kathy Kliebert, Secretary of the Louisiana

Department of Health and Hospitals, and Devin George, Louisiana State Registrar.


________________________________________

UNITED STATES DISTRICT JUDGE

14-31037.1580




Plaintiffs

v.


Defendants

CIVIL ACTION

NO. 13-5090

SECTION F(5)



REF: ALL CASES

ORDER

Having considered the Motion to Enroll as Co-Counsel of Record filed by J.

Michael Johnson, and consented to by counsel for defendants, S. Kyle Duncan, Special

Assistant Attorney General for the Louisiana Department of Justice, it is ORDERED

that the motion is GRANTED, and that J. Michael Johnson be and he is enrolled as

co-counsel of record in these proceedings for Defendants Tim Barfield, Secretary of

the Louisiana Department of Revenue, Kathy Kliebert, Secretary of the Louisiana

Department of Health and Hospitals, and Devin George, Louisiana State Registrar.


________________________________________

UNITED STATES DISTRICT JUDGE

11th Hello This is a Test

June


14-31037.1581




Defendants

CIVIL ACTION



REF: ALL CASES

DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY

Earlier today the U.S. Ninth Circuit Court of Appeals denied en banc review,

over the dissent of three judges, in SmithKline Beecham Corp. v. Abbott Labs., 740

F.3d 741 (9th Cir. 2014), a decision discussed by both sides in this case. See Order

Denying En Banc Reh’g in No. 11-17357, SmithKline Beecham Corp. v. Abbott Labs.

(filed June 24, 2014) (attached as Ex. 1); see also Doc. 86-1 at 12; Doc. 102 at 8; Doc.

100 at 3; Doc. 103-2 at 4 (discussing SmithKline). Defendants submit as

supplemental authority Judge O’Scannlain’s dissent (joined by Judges Bybee and

Bea) because it supports defendants’ argument, Doc. 102 at 7-9, Doc. 103-2 at 4,

that the Supreme Court’s Windsor opinion does not apply heightened equal

protection scrutiny to sexual orientation classifications. See Ex. 1 at 8 (dissent of

O’Scannlain, J., joined by Bybee and Bea, JJ.) (stating that “nothing in Windsor

compels the application of heightened scrutiny to this juror selection challenge”); id.

at 9 (noting that Windsor “declined to adopt the reasoning of the Second Circuit,

which had expressly applied heightened scrutiny to the equal protection claim in

the case”) (citing Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012)); id. at


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2

10-11 (explaining that, “[i]n declaring … [DOMA] Section [3] to be motivated by no

‘legitimate’ purpose, Windsor only applies rational basis review in the same way

that Romer reviewed Colorado’s Amendment 2 for rational basis”); id. at 11 (noting

that “Windsor relied on rational basis cases”).


s/ S. Kyle Duncan S. Kyle Duncan, 25038, T.A. Special Assistant Attorney General Louisiana Department of Justice P.O. Box 94005 Baton Rouge, LA 70804 Phone: (202) 714-9492 Fax: (225) 326-6098 [email protected] J. Michael Johnson Law Offices of Mike Johnson, LLC 2250 Hospital Drive Beene Office Park, Suite 248 Bossier City, LA 71111 Phone: (318) 658-9456 Fax: (318) 658-9605

Attorneys for Defendants


14-31037.1583

3





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vol-98364

Documents

Transcript of vol-98364