![2
Constitution. See United States v. Windsor, 133 S. Ct.
2675 (2013). The Court in Windsor recognized that the
“[r]esponsibilities” attendant to marriage, “as well as
[the] rights, enhance the dignity and integrity of the
person.” Id. at 2694. The Court therefore held that a
law treating same-sex couples differently from others
by withholding those rights and responsibilities “de-
means” same-sex couples, “impose[s] inequality” and “a
stigma” on them, denies them “equal dignity,” treats
them as “unworthy,” and “humiliates” and makes vul-
nerable their children. Id. at 2693-2694. Those children,
the Court explained, should not be “instruct[ed]” that
the marriage of the parents who provide for and raise
them “is less worthy”—and neither they nor their par-
ents should suffer from the law’s placement of “same-
sex couples in an unstable position” of having “second-
tier” relationships. Id. at 2694, 2696. Thus, this Court
rejected a law that would “restrict the freedom” of
those couples and infringe “the liberty of the person” by
“impos[ing] a disability on the class”—by “dispar-
ag[ing]” and “injur[ing]” a set of individuals entitled to
“personhood and dignity.” Id. at 2693, 2695-2696.
Although amici hold a broad spectrum of socially
and politically conservative, moderate, and libertarian
views, amici share the view that laws that bar same-sex
couples from the institution of civil marriage, with all
its attendant profoundly important rights and respon-
sibilities, are inconsistent with the United States Con-
stitution’s dual promises of equal protection and due
process. The marriage bans challenged here, like the
act at issue in Windsor, target gay and lesbian couples
and their families for injurious governmental treat-
ment. The bans are accordingly inconsistent with ami-
ci’s understanding of the properly limited role of gov-
ernment. Rather, amici embrace Barry Goldwater’s](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-12-320.jpg)
![3
expression of that understanding, namely that “[w]e do
not seek to lead anyone’s life for him—we seek only to
secure his rights and to guarantee him opportunity to
strive, with government performing only those needed
and constitutionally sanctioned tasks which cannot oth-
erwise be performed.”2
Amici further believe that when the government
does act in ways that affect individual freedom in mat-
ters of family and child-rearing, it should promote fami-
ly-supportive values like responsibility, fidelity, com-
mitment, and stability. Much has been written about
the deleterious impact of family breakdown in our Na-
tion today. There is a need for more Americans to
choose to participate in the institution of marriage. Yet
these bans, by denying each member of an entire class
of American citizens the right to marry the person he
or she loves, discourage those important family values.
They discourage responsibility, fidelity, and commit-
ment. And they harm children, denying them and their
loving parents the basic legal protections that provide
stability and security so critical to child-rearing.
Many of the signatories to this brief previously did
not support civil marriage for same-sex couples; others
did not hold a position on the issue until recently. The
list of signatories to this brief overlaps with, but also
extends beyond, those who joined a similar brief in Hol-
lingsworth v. Perry, 133 S. Ct. 2652 (2013), likewise
supporting there the couples challenging California’s
marriage-restrictive Proposition 8. As civil marriage
has become a reality for same-sex couples in 36 States
and the District of Columbia, amici, like many Ameri-
2
Goldwater, Speech at the Republican National Convention
(July 16, 1964), available at http://www.washingtonpost.com/wp-
srv/politics/daily/may98/goldwaterspeech.htm.](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-13-320.jpg)
![7
together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our
prior decisions.” (internal quotation marks omitted)).
By reinforcing essential values such as commitment,
faithfulness, responsibility, and sacrifice, marriage is
the foundation of the secure families that form the
building blocks of our communities and our Nation. See
Maynard v. Hill, 125 U.S. 190, 205, 211 (1888)
(marriage is “the foundation of the family and of
society, without which there would be neither
civilization nor progress”). It both provides a
protective shelter and reduces the need for reliance on
the state. As a perceptive observer of American
society wrote almost two centuries ago, “There is
certainly no country in the world where the tie of
marriage is so much respected as in America ….
[W]hen the American retires from the turmoil of public
life to the bosom of his family, he finds in it the image of
order and of peace.… [H]e afterwards carries [that
image] with him into public affairs.” 2 de Tocqueville,
Democracy in America 230 (Reeve trans., Saunders &
Otley 1835).
Choosing to marry is also a paradigmatic exercise of
human liberty. Loving v. Virginia, 388 U.S. 1, 12 (1967)
(“The freedom to marry has long been recognized as one
of the vital personal rights essential to the orderly
pursuit of happiness by free men.”). Those who have
been denied the right to marry may be the most
eloquent witnesses to its fundamental importance to
liberty. As an expert on the history of marriage
observed, “[w]hen slaves were emancipated, they](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-17-320.jpg)
![8
flocked to get married. And this was not trivial to them,
by any means. [One] ex-slave who had also been a
Union soldier ... declared, ‘The marriage covenant is the
foundation of all our rights.’” Transcript 202-203, Perry
v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)
(No. 09-2292). Moreover, the mutual dependence and
obligation fostered by marriage affirmatively advance
the appropriately narrow and modest role of
government.
For those who choose to marry, the rights and
responsibilities conveyed by civil marriage provide a
bulwark against unwarranted government intervention
into deeply personal concerns such as medical and
child-rearing decisions. See, e.g., Pierce v. Society of
Sisters, 268 U.S. 510, 534-535 (1925) (affirming “the
liberty of parents and guardians to direct the
upbringing and education of children under their
control”); Meyer v. Nebraska, 262 U.S. 390, 401 (1923)
(recognizing “the power of parents to control the
education of their own”). Thus, this Court has
recognized on numerous occasions that the freedom to
marry is one of the fundamental liberties that an
ordered society must strive to protect and promote.4
4
See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (“Choices
about marriage, family life, and the upbringing of children are
among associational rights this Court has ranked as ‘of basic im-
portance in our society,’ rights sheltered by the Fourteenth
Amendment against the State’s unwarranted usurpation, disre-
gard, or disrespect.” (citation omitted)); Turner v. Safley, 482 U.S.
78, 95 (1987) (“[T]he decision to marry is a fundamental right” and
an “expression[] of emotional support and public commitment.”);
Zablocki, 434 U.S. at 384 (“[T]he right to marry is of fundamental
importance for all individuals.”); Loving, 388 U.S. at 12; Meyer, 262
U.S. at 399 (the right “to marry, establish a home and bring up
children” is a central part of constitutionally protected liberty); see
also, e.g., Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971)](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-18-320.jpg)
![9
This Court has reaffirmed that freedom by securing
marriage rights for prisoners, Turner v. Safley, 482
U.S. 78, 95 (1987); striking down laws requiring court
permission to marry, Zablocki, 434 U.S. at 388; and
eliminating discriminatory restrictions on the right to
marry, Loving, 388 U.S. at 12; Windsor, 133 S. Ct. at
2696. “Taken together, both the Windsor and Loving
decisions stand for the proposition that, without some
overriding legitimate interest, the state cannot use its
domestic relations authority to legislate families out of
existence.” DeBoer v. Snyder, 973 F. Supp. 2d 757, 774
(E.D. Mich.), rev’d, 772 F.3d 388 (6th Cir. 2014).
Our national commitment to civil marriage—and
this Court’s recognition of its fundamental status—
reflects a common understanding that those who choose
to marry benefit tremendously from the stability and
mutual support and obligation that the legal
relationship confers. Some of these protections are
concrete. See, e.g., Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 962 (N.D. Cal. 2010) (married couples
“fare better. They are physically healthier. They tend
to live longer. They engage in fewer risky behaviors.
They look better on measures of psychological well-
being”). Others are yet more profound, as the legal
relationship of marriage distinctly confers on couples—
and their children—numerous enhancements to
individual autonomy and family security.
For instance, marriage makes it immeasurably
easier for family members to plan with and decide for
one another. Married individuals can make medical
(“[M]arriage involves interests of basic importance in our society”
and is “a fundamental human relationship.”); Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535, 541 (1942) (marriage is “one of
the basic civil rights of man”).](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-19-320.jpg)
![10
decisions together (or for each other if one spouse is not
able to make a decision) and can make joint decisions
for the upbringing of children; they can plan jointly for
their financial future and their retirement; they can
hold property together; they can share a spouse’s
medical insurance policy and have the health coverage
continue for a period after a spouse’s death; and they
have increased protections against creditors upon the
death of a spouse. Some—not all—of these rights and
responsibilities can be approximated outside marriage
with expensive legal assistance, but only marriage
provides a family with the security that those rights
and responsibilities will be automatically available
when they are most needed.
Perhaps most importantly, marriage protects
children. “We know, for instance, that children who
grow up in intact, married families are significantly
more likely to graduate from high school, finish college,
become gainfully employed, and enjoy a stable family
life themselves[.]” Institute for American Values,
When Marriage Disappears: The New Middle America
52 (2010); see also id. at 95 (“Children who grow up
with cohabiting couples tend to have more negative life
outcomes compared to those growing up with married
couples. Prominent reasons are that cohabiting couples
have a much higher breakup rate than do married
couples, a lower level of household income, and a higher
level of child abuse and domestic violence.” (footnote
omitted)). These protections have become even more
critical in recent decades, as marital rates have declined
and child-rearing has become increasingly untethered
to marriage. See, e.g., Cherlin, American Marriage in
the Early Twenty-First Century, in 15 The Future of
Children 33, 35-36 (2005).](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-20-320.jpg)
![12
There is no question that the hundreds of thou-
thousands of children being raised by same-sex
couples5
—some married, some precluded from
marrying—would be protected by the security and
stability that civil marriage confers. This Court has
already suggested as much. See Windsor, 133 S. Ct. at
2694 (recognizing that DOMA placed same-sex couples
in the “unstable position” of a “second-tier” relationship
that “humiliate[d]” and harmed the children being
raised by those couples); id. at 2695 (rejecting DOMA’s
imposition of “financial harm [on] children of same-sex
couples” by depriving their families of various marital
rights and responsibilities). The denial of civil marriage
to same-sex couples does not mean that their children
will be raised by married opposite-sex couples. Rather,
the choice here is between allowing same-sex couples to
marry versus depriving their children of married
parents altogether. Indeed, a decision that States may
exclude same-sex couples from civil marriage might call
into doubt the status of marriages that have already
been lawfully recognized, legally erasing existing
families—an even starker humiliation than that
condemned in Windsor.
Courts across the country have repeatedly found
“that it was the government’s failure to recognize
same-sex marriages that harmed children, not having
married parents who happened to be of the same sex.”
Bourke v. Beshear, 996 F. Supp. 2d 542, 553 (W.D. Ky.),
rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir.
2014); see also, e.g., Golinski v. OPM, 824 F. Supp. 2d
968, 992 (N.D. Cal. 2012) (“The denial of recognition and
5
See Gates, LGBT Parenting in the United States 1 (Feb.
2013), available at http://escholarship.org/uc/item/9xs6g8xx (“More
than 125,000 same-sex couple households … include nearly 220,000
children under age 18.”).](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-22-320.jpg)
![13
withholding of marital benefits to same-sex couples
does nothing to support opposite-sex parenting, but
rather merely serves to endanger children of same-sex
parents[.]”).
It is precisely because marriage is so important in
producing and protecting strong and stable family
structures that the goal of strengthening families
favors civil marriage for same-sex couples. As British
Prime Minister and Conservative Party Leader David
Cameron explained, “Conservatives believe in the ties
that bind us; that society is stronger when we make
vows to each other and support each other. So I don’t
support gay marriage despite being a Conservative. I
support gay marriage because I’m a Conservative.”6
II. THE FOURTEENTH AMENDMENT REQUIRES EQUAL
ACCESS TO CIVIL MARRIAGE BECAUSE THERE IS NO
LEGITIMATE, FACT-BASED JUSTIFICATION FOR
GOVERNMENT TO EXCLUDE SAME-SEX COUPLES IN
COMMITTED RELATIONSHIPS
In Windsor, this Court held that DOMA was
invalid because it “differentiat[ed]” same-sex couples in
terms of their marital rights and responsibilities,
rendering them “second-tier” and “humiliat[ing]” the
children being raised by them. 133 S. Ct. at 2694. This
unequal classification of citizens, the Court explained,
exceeds the government’s authority in light of the
Constitution’s guarantees of equal protection, which
“withdraw[] from Government the power to degrade or
demean” in that manner. Id. at 2695. This Court ruled
that “no legitimate purpose overcomes the purpose and
6
Cameron, Address to the Conservative Party Conference
(Oct. 5, 2011), available at http://www.bbc.co.uk/news/uk-politics-
15189614.](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-23-320.jpg)
![14
effect to disparage and to injure” individuals who are
entitled to “personhood and dignity.” Id. at 2696. Just
as in Windsor, the laws in these cases have the
“purpose and practical effect … to impose a
disadvantage, a separate status, and so a stigma” on
same-sex couples with respect to civil marriage rights
and responsibilities. Id. at 2693.
Laws that classify citizens and render them
unequal in their access to civil rights and
responsibilities raise grave constitutional questions,
and at a minimum such laws must have “reasonable
support in fact,” New York State Club Ass’n v. City of
N.Y., 487 U.S. 1, 17 (1988), and must “operate so as
rationally to further” a legitimate government goal,
Department of Agric. v. Moreno, 413 U.S. 528, 537
(1973). To survive scrutiny under the Equal Protection
Clause, a law must at the very least be founded in the
“realities” of the subject covered by that law. Heller v.
Doe, 509 U.S. 312, 321 (1993) (“[E]ven the standard of
rationality as we so often have defined it must find
some footing in the realities of the subject addressed by
the legislation.”). “[C]lassification[s] must be
reasonable, not arbitrary, and must rest upon some
ground of difference having a fair and substantial
relation to the object of the legislation, so that all
persons similarly circumstanced shall be treated alike.”
F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415
(1920); see also Board of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 367 (2001) (attitudes unsubstantiated by
relevant facts are not sufficient to indicate the
furtherance of a legitimate government purpose);
Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 36-
37 (1928) (“[M]ere difference is not enough; the
attempted classification ‘must always rest upon some](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-24-320.jpg)
![15
difference which bears a reasonable and just relation to
the act[.]’”).
Recent rulings in civil marriage cases have
observed that discrimination against same-sex couples
in this context cannot survive any level of review
because it is not rationally related to a legitimate
governmental purpose grounded in fact. See, e.g.,
DeBoer, 973 F. Supp. 2d at 768 (“The Court finds that
the [Michigan Marriage Amendment] impermissibly
discriminates against same-sex couples in violation of
the Equal Protection Clause because the provision does
not advance any conceivable legitimate state interest.”),
rev’d, 772 F.3d 388 (6th Cir. 2014); Searcy v. Strange,
No. 14-208, 2015 WL 328728, at *5 (S.D. Ala. Jan. 23,
2015) (“If anything, Alabama’s prohibition … detracts
from its goal of promoting optimal environments for
children.”); Hamby v. Parnell, No. 14-089, 2014 WL
5089399, at *12 (D. Alaska Oct. 12, 2014) (“Alaska’s
same-sex marriage laws are a prime example of how
‘the varying treatment of different groups or persons is
so unrelated to the achievement of any combination of
legitimate purposes that we can only conclude that the
legislature’s actions were irrational.’”); Love v. Beshear,
989 F. Supp. 2d 536, 547 (W.D. Ky. 2014) (“Ultimately,
Kentucky’s laws banning same-sex marriage cannot
withstand constitutional review regardless of the
standard.”).
Amici do not believe there is a legitimate, fact-
based justification for excluding same-sex couples from
civil marriage. Over the past two decades, the
arguments presented by proponents of such initiatives
have been discredited by social science, rejected by
courts, and contradicted by amici’s personal experience
with same-sex couples, including those whose civil
marriages have been legally performed and recognized](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-25-320.jpg)
![19
ensure that each of these three children could have two
legal parents rather than one, and that both parents
could make critical decisions related to the health and
welfare of their children. Rather than reinforce this
bond between marriage and child-rearing—and the
bond between this couple and the children they have
committed to raise—Michigan’s exclusionary law
sunders it, to the detriment of both this family and the
institution of civil marriage.
Child Welfare. If there were any persuasive
evidence that the civil marriages of same-sex couples
were detrimental to children, amici would give it great
weight. But there is not. As amici have come to
recognize, and as this Court made clear in Windsor,
child welfare is imperiled, not advanced, by excluding
same-sex parents raising children from civil marriage.
First and foremost, legally differentiating their
parents “humiliates” those children now being raised by
same-sex couples. Windsor, 133 S. Ct. at 2694. In
addition, governmental bans on civil marriage rights for
same-sex couples threaten their children’s financial
security and the stability of their entire families. See,
e.g., DeBoer, 973 F. Supp. 2d at 764 (finding that
“children being raised by same-sex couples have only
one legal parent and are at risk of being placed in ‘legal
limbo’ if that parent dies or is incapacitated. Denying
same-sex couples the ability to marry therefore has a
manifestly harmful and destabilizing effect on such
couples’ children.”); see also Windsor, 133 S. Ct. at 2694-
2695 (relying upon a law’s “financial harm to children of
same-sex couples” and placement of “same-sex couples
in an unstable position” in declaring the law
unconstitutional). Rather than disagree, the court of
appeals in these cases further enumerated harms,
writing that the marriage bans at issue “deprive[]](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-29-320.jpg)
![20
[same-sex couples] of benefits that range from the pro-
profound (the right to visit someone in a hospital as a
spouse or parent) to the mundane (the right to file joint
tax returns). These harms affect not only gay couples
but also their children.” DeBoer v. Snyder, 772 F.3d
388, 407-408 (6th Cir. 2014).
In contrast to the clear evidence of harm to
children from laws excluding same-sex couples from
civil marriage, there is no grounding in facts or reality
to conclude that such exclusion supports or furthers the
interests of children. Social scientists have
resoundingly rejected the claim that children raised by
same-sex parents fare worse than children raised by
other couples. Empirical research “gathered during
several decades” shows “no systemic difference”
between the child-rearing capabilities of same-sex and
heterosexual parents, but rather that the sexual
orientation of a child’s parent has no measurable effect
on the child’s well-being. Perrin et al., Technical
Report: Coparent or Second-Parent Adoption by
Same-Sex Parents, 109 Pediatrics 341, 343 (2002)
(finding no differences regarding “emotional health,
parenting skills, and attitude towards parenting”
between same-sex and other parents, and finding that
“[n]o data have pointed to any risk to children as a
result of growing up in a family with 1 or more gay
parents”); see also Farr et al., Parenting and Child
Development in Adoptive Families: Does Parental
Sexual Orientation Matter?, 14 Applied Developmental
Sci. 164, 175 (2010) (finding children adopted by same-
sex parents to be “as well adjusted as those adopted by
heterosexual parents” and that there were “no
significant differences” between same-sex and
heterosexual parents “in terms of child adjustment,](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-30-320.jpg)
![21
parenting behaviors, or couples’ adjustment”).8
The
court of appeals in these cases readily agreed: “[G]ay
couples, no less than straight couples, are capable of
raising children and providing stable families for them.
The quality of such relationships, and the capacity to
raise children within them, turns not on sexual
orientation but on individual choices and individual
commitment.” DeBoer, 772 F.3d at 405.
Scientific conclusions about the lack of harm to
children raised in same-sex households have only been
further vindicated. For instance, recent longitudinal
studies of households with same-sex parents have
found that the children of these families fared as well as
their peers with heterosexual parents on measures of
psychological well-being.9
In the adoption context, a
2013 study of children adopted into families with same-
sex and opposite-sex parents found that “[c]hildren’s
adjustment outcomes did not differ by family type.”10
And a 2012 study found that high-risk children adopted
8
Courts that have examined the evidence have unanimously
agreed. See, e.g., DeBoer, 973 F. Supp. 2d at 768; Hamby, 2014 WL
5089399, at *11 & n.99; Perry, 704 F. Supp. 2d at 980. Assertions
to the contrary have been exposed as unsupported, biased, or both.
See, e.g., DeBoer, 973 F. Supp. 2d at 766-768 (explaining how Mich-
igan relied upon a study “hastily concocted at the behest of a third-
party funder … [who] clearly wanted a certain result and [the
study’s author] obliged,” as well as studies that were methodologi-
cally unsound).
9
E.g., van Gelderen et al., Quality of Life of Adolescents
Raised From Birth by Lesbian Mothers: The US National Longi-
tudinal Family Study, 33 J. Developmental & Behav. Pediatrics
17 (2012).
10
Goldberg & Smith, Predictors of Psychological Adjustment
in Early Placed Adopted Children With Lesbian, Gay, and Heter-
osexual Parents, 27 J. Family Psychol. 431, 431 (2013).](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-31-320.jpg)
![22
from foster care did at least equally well whether
adopted by opposite-sex or same-sex parents, “despite
gay and lesbian parents raising children with higher
levels of biological and environmental risks prior to
adoptive placement.”11
Biology. There is also no biological justification for
denying civil marriage to same-sex couples. Allowing
same-sex couples to marry in no way undermines the
importance of marriage for opposite-sex couples who
enter into marriage to provide a stable family structure
for their children. Indeed, there is no evidence that
marriage between individuals of the same sex affects
opposite-sex couples’ decisions about procreation,
marriage, divorce, or parenting whatsoever. Cf.
Windsor v. United States, 699 F.3d 169, 188 (2d Cir.
2012) (laws burdening same-sex couples’ right to civil
marriage “do[] not provide any incremental reason for
opposite-sex couples to engage in ‘responsible
procreation’”), aff’d, 133 S. Ct. 2675 (2013).
Moreover, our society has long recognized that civil
marriage also protects and benefits couples who are
unable, or who choose not, to bear children. Many
married couples adopt children and thus value the
child-protective institution of marriage. Others marry
after child-bearing age but still benefit from the web of
rights and obligations conferred by marriage. In
particular, marriage facilitates the opportunity and
ability of members of couples to support each other, as
well as their vulnerable relatives and fellow community
members of any age, and thereby to avoid reliance upon
government assistance and intervention. See Windsor,
11
Lavner et al., Can Gay and Lesbian Parents Promote
Healthy Development in High-Risk Children Adopted From Fos-
ter Care?, 82 Am. J. Orthopsychiatry 465, 465 (2012).](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-32-320.jpg)
![24
B. Even If The Marriage Bans Were Based On
Concerns For Tradition And Caution In The
Face Of Societal Change, That Does Not
Sustain Their Constitutionality
That governments may have long treated same-sex
couples differently from opposite-sex couples where
civil marriage is concerned does not by itself provide a
permissible justification for discriminatory laws like
the marriage bans at issue here. The rule that a
classification must find support in a legitimate factual
justification—not simply in its historical pedigree—is
central to our constitutional tradition.
This Court’s gender discrimination cases, in
particular, make clear that formerly widespread
traditional views alone cannot justify a discriminatory
law under even the most permissive standard of review.
Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (“old
notions” and “role-typing” did not supply a rational
basis for classification); see also Craig v. Boren, 429 U.S.
190, 198-199 (1976) (rejecting “increasingly outdated
misconceptions” as “loose-fitting characterizations
incapable of supporting state statutory schemes that
were premised upon their accuracy”). This Court has
not hesitated to reconsider a law’s outmoded
justifications and, where appropriate, to deem them
insufficient to survive an equal protection challenge.
See, e.g., Trammel v. United States, 445 U.S. 40, 52
(1980) (rejecting basis for law discriminating based on
sex because its “ancient foundations … have long since
disappeared” as “[c]hip by chip, over the years those
archaic notions [of women’s roles] have been cast
aside”); Taylor v. Louisiana, 419 U.S. 522, 537 (1975)
(“If it was ever the case that women were unqualified to
sit on juries or were so situated that none of them
should be required to perform jury service, that time](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-34-320.jpg)
![25
has long since passed.”). The governmental bans at is-
issue here rest on similarly ungrounded, archaic, and
obsolete beliefs—however sincerely, strongly, or long
held—and thus the Fourteenth Amendment requires
recognition of the bans’ invalidity.
This Court has long made clear that, when personal
liberty is at stake, the Constitution cannot continue to
enshrine previously unexamined societal assumptions
once new facts and information come to light. See
Palmore v. Sidoti, 466 U.S. 429, 434 (1984) (reversing
court of appeals’ decision that a child could be removed
from the mother’s custody because the mother had
entered into an interracial marriage); Brown v. Board
of Educ., 347 U.S. 483, 492-494 (1954) (“[W]e cannot
turn the clock back to … 1896 when Plessy v. Ferguson
was written …. Whatever may have been the extent of
psychological knowledge at the time of Plessy v.
Ferguson, this finding [that racial segregation denotes
inferiority] is amply supported by modern authority.”).
Courts in cases like these have thus rejected the
bare invocation of tradition as a sufficient rational basis
for precluding same-sex couples from access to civil
marriage. See DeBoer, 973 F. Supp. 2d at 772 ( “‘The
basic guarantees of our Constitution are warrants for
the here and now’”); Bourke, 996 F. Supp. 2d at 552
(holding that tradition cannot alone justify
infringement of individual liberties); Golinski, 824 F.
Supp. 2d at 998 (“[T]he argument that the definition of
marriage should remain the same for the definition’s
sake is a circular argument, not a rational
justification.”); Perry, 704 F. Supp. 2d at 998 (“[T]he
state must have an interest apart from the fact of the
tradition itself.”).](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-35-320.jpg)
![26
Although amici firmly believe that beneficial insti-
institutions like marriage should not be changed lightly,
embracing marriage for same-sex couples would not
change the institution of marriage; it would strengthen
that institution. Moreover, amici do not believe that
courts are bound to disregard facts when considering
outmoded and injurious laws that stand against any
rectifying change. See 2 Burke, The Works of the Right
Honourable Edmund Burke 295 (Bell ed. 1892) (“A
state without the means of some change is without the
means of its conservation.”). Our Nation has
undergone too many changes for the better already—
especially in its repudiation of discrimination against
minorities—to allow social policy to be dictated by
unexamined hypotheses undermined by evidence.
Thus, a law cannot be sustained when it no longer
reflects the “realities of the subject” that law
addresses. Heller, 509 U.S. at 321; see also id. at 326
(“Ancient lineage of a legal concept does not give it
immunity from attack for lacking a rational basis.”);
Williams v. Illinois, 399 U.S. 235, 239 (1970)
(“[N]either the antiquity of a practice nor the fact of
steadfast legislative and judicial adherence to it
through the centuries insulates it from constitutional
attack[.]”). It is the traditional values served by civil
marriage—responsibility, fidelity, commitment, and
stability, among others—that amici believe justify its
equal availability under law. Those values would be
served by ending governmental exclusion of same-sex
couples from the institution of civil marriage, not by
perpetuating it.12
12
To be sure, some Americans hold deep-seated religious ob-
jections to same-sex couples marrying. But amici do not believe
that civil marriage rights can or need be withheld from same-sex
couples for fear that the religious freedom of the faithful will be](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-36-320.jpg)
![27
Thus, amici view the court of appeals’ invocations of
“[a] Burkean sense of caution” and a “wait-and-see
approach,” DeBoer, 772 F.3d at 406, 409, as misplaced.
The laws at issue here are anything but cautious, as
they enact permanent government exclusions of same-
sex couples from civil marriage—exclusions that are, in
many instances, enshrined against ordinary legislative
revision. That very lack of caution is made clear by the
fact that none of the governments has grounded its
purported caution in anything more than speculation
that unspecified adverse consequences could result.
This Court does not treat caution, by itself, as a
sufficient justification to deny individuals equal access
to fundamental rights. See, e.g., Watson v. City of
Memphis, 373 U.S. 526, 535-536 (1963) (rejecting a
government’s purported interest in proceeding with
“gradual” change); Hunter v. Erickson, 393 U.S. 385,
392 (1969) (rejecting a government “decision to move
slowly in the delicate area”). And, as governments “can
plead an interest in proceeding with caution in almost
any setting,” Kitchen v. Herbert, 961 F. Supp. 2d 1181,
1213 (D. Utah 2013), treating such an interest as
sufficient to sustain otherwise discriminatory laws
would render this Court’s review a nullity. Such a
result is untenable; as this Court recently confirmed,
even a government’s desire to avail itself of the benefit
of State-by-State experimentation “may not deny the
infringed. As discussed supra note 3, the First Amendment and
analogous State laws provide ample protection for expressions of
diverging views on the subject. And amici see no reason why a
decision from this Court holding that the Fourteenth Amendment
requires State governments to solemnize and recognize marriages
between same-sex couples should in any way prejudice the rights
of the faithful to voice their opinions on the subject, nor require
them to participate in or otherwise endorse civil marriages for
same-sex couples based on their sincerely held religious beliefs.](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-37-320.jpg)
![29
5 The Writings of James Madison: 1787-1790, at 272
(Hunt ed., 1904). Likewise, while it is the duty of the
political branches of government “in the first and
primary instance” “to preserve and protect the
Constitution,” the judiciary must not “admit inability to
intervene when one or the other level of Government
has tipped the scales too far.” United States v. Lopez,
514 U.S. 549, 577-578 (1995) (Kennedy, J., concurring).
This Court has repeatedly made clear that although
legislators and voters may generally exercise power
over certain subjects—including many contentious
social issues—the government’s power is limited when
it comes to injurious incursions upon the freedom of
minorities. See, e.g., Schuette v. Coalition To Defend
Affirmative Action, 134 S. Ct. 1623, 1636-1637 (2014)
(plurality opinion) (emphasizing that the Constitution
requires redress by the courts when “the
encouragement or command of laws or other state
action” inflicts “hurt or injury” on minorities); Lucas v.
Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-
737 (1964) (“A citizen’s constitutional rights can hardly
be infringed simply because a majority of the people
choose that it be.”). The court of appeals mistook this
Court’s teachings for a mandate to refrain from
judgment even where it is individuals and their
freedoms, not the democratic process, that are being
“demean[ed].” Windsor, 133 S. Ct. at 2694 (placing
“same-sex couples in an unstable position” and treating
their relationships as “second-tier” is a “differentiation
[that] demeans the couple”); see DeBoer, 772 F.3d at 409
(quoting Schuette, 134 S. Ct. at 1637).
It is accordingly not a violation of principles of
judicial restraint for this Court to strike down laws that
infringe “fundamental rights necessary to our system of
ordered liberty,” McDonald v. City of Chicago, 561](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-39-320.jpg)
![30
U.S. 742, 778 (2010), particularly where they inflict “re-
“real and specific injury,” Schuette, 134 S. Ct. at 1631,
1636-1638. It is instead a key protection of limited,
constitutionally constrained government. See
Federalist No. 78, at 524 (Hamilton) (Cooke ed., 1961)
(“[A] limited constitution … can be preserved in
practice no other way than through the medium of the
courts of justice; whose duty it must be to declare all
acts contrary to the manifest tenor of the constitution
void.”); see also Madison, Speech in Congress on the
Removal Power (June 8, 1789), in 1 Annals of Cong.
448, 457 (Gales ed., 1790) (“[I]ndependent tribunals …
will be an impenetrable bulwark against every
assumption of power in the legislative or executive;
they will be naturally led to resist every encroachment
upon rights expressly stipulated for in the
constitution[.]”).
The right to marry indisputably falls within the
narrow band of specially protected liberties that this
Court ensures are protected from unwarranted
curtailment. This Court’s special solicitude for marriage
is manifest in its decision in Loving. There, this Court
held a State ban on interracial marriage invalid under
the Fourteenth Amendment, rejecting arguments that
the Court should not address an issue of exclusively
State concern and that social science evidence
demonstrated that interracial marriage harmed
children, led to higher divorce rates, and weakened the
marital bond. See Appellee Br., Loving, 388 U.S. 1 (No.
66-395).13
13
This Court struck down Virginia’s ban on interracial mar-
riage in Loving even though States were actively debating wheth-
er to repeal or to continue enforcing such laws. 388 U.S. at 6 & n.5;
see also id. at 7-8. This Court’s action did not improperly short-](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-40-320.jpg)
![31
The bans at issue here have run afoul of our consti-
tutional order by submitting a fundamental right to leg-
islative or popular referendum. See City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“It is
plain that the electorate as a whole, whether by refer-
endum or otherwise, could not order [government] ac-
tion violative of the Equal Protection Clause, and the
[government] may not avoid the strictures of that
Clause by deferring to the wishes or objections of some
fraction of the body politic.” (citation omitted)); see also
West Virginia State Bd. of Educ. v. Barnette, 319 U.S.
624, 638 (1943) (“The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond the reach
of majorities and officials and to establish them as legal
principles to be applied by the courts. One’s right to
life, liberty, and property, … and other fundamental
rights may not be submitted to vote; they depend on
the outcome of no elections.”). These cases accordingly
present one of the rare instances in which judicial
action is necessary to prevent overreaching by the
electorate. When fundamental liberties are at stake,
personal “choices and assessments … are not for the
Government to make,” Citizens United v. FEC, 558
U.S. 310, 372 (2010), and courts must step in to prevent
any encroachment upon individual rights.
Our constitutional guarantees of freedom are no
less a part of our legal traditions than is the salutary
principle of judicial restraint, and this Court honors
those traditions—as well as conservative principles—
circuit ongoing democratic developments in the sixteen States that
prohibited interracial marriage at the time, but rather fulfilled this
Court’s responsibility to enforce the constitutional guarantee of
equal protection.](https://image.slidesharecdn.com/d0b95d7b-4b67-4961-80eb-b9c963338787-151224094742/85/SupremeCourtAmicusBrief-41-320.jpg)
SupremeCourtAmicusBrief
- 1. Nos. 14-556, 14-562, 14-571, 14-574 IN THE Supreme Court of the United States JAMES OBERGEFELL, et al., Petitioners, v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al., Respondents. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF OF AMICI CURIAE KENNETH B. MEHLMAN ET AL. SUPPORTING PETITIONERS SEAN R. GALLAGHER STACY A. CARPENTER BENNETT L. COHEN POLSINELLI PC 1515 Wynkoop Street Suite 600 Denver, CO 80202 REGINALD J. BROWN SETH P. WAXMAN Counsel of Record PAUL R.Q. WOLFSON DINA B. MISHRA WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 seth.waxman@wilmerhale.com ADDITIONAL CAPTIONS AND COUNSEL LISTED ON INSIDE COVER
- 2. BRITTANI HENRY, et al., Petitioners, v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al., Respondents. VALERIA TANCO, et al., Petitioners, v. WILLIAM EDWARD “BILL” HASLAM, et al., Respondents. APRIL DEBOER, et al., Petitioners, v. RICHARD SNYDER, et al., Respondents. GREGORY BOURKE, et al., Petitioners, v. STEVE BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF KENTUCKY, Respondent. MARK C. FLEMING FELICIA H. ELLSWORTH ELISABETH M. OPPENHEIMER ALLISON TRZOP WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 ALAN E. SCHOENFELD WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007
- 3. (i) TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...........................................ii INTEREST OF AMICI CURIAE...................................1 SUMMARY OF ARGUMENT.........................................1 ARGUMENT.......................................................................6 I. EQUAL ACCESS TO CIVIL MARRIAGE PRO- MOTES THE CONSERVATIVE VALUES OF STABILITY, MUTUAL SUPPORT, AND MU- TUAL OBLIGATION ........................................................6 II. THE FOURTEENTH AMENDMENT REQUIRES EQUAL ACCESS TO CIVIL MARRIAGE BE- CAUSE THERE IS NO LEGITIMATE, FACT- BASED JUSTIFICATION FOR GOVERNMENT TO EXCLUDE SAME-SEX COUPLES IN COMMITTED RELATIONSHIPS....................................13 A. The Facts Do Not Support Any Of The Putative Rationales For Marriage Bans.......................................................................16 B. Even If The Marriage Bans Were Based On Concerns For Tradition And Caution In The Face Of Societal Change, That Does Not Sustain Their Constitutionality .................................................23 III. THIS COURT SHOULD ENSURE THAT GOV- ERNMENTS DO NOT DENY THE RIGHTS AND RESPONSIBILITIES OF CIVIL MAR- RIAGE TO SAME-SEX COUPLES.................................27 CONCLUSION .................................................................32 APPENDIX: List of Amici Curiae................................1a
- 4. ii TABLE OF AUTHORITIES CASES Page(s) Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001) ......................................14 Boddie v. Connecticut, 401 U.S. 371 (1971) .....................8 Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014).....................................................12, 25 Brown v. Board of Education, 347 U.S. 483 (1954)............................................................................24 Buckley v. Valeo, 424 U.S. 1 (1976) ................................31 Citizens United v. FEC, 558 U.S. 310 (2010) ................30 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .....................................................30 Craig v. Boren, 429 U.S. 190 (1976) ................................23 DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) ....................................................................passim DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) ............................9, 14, 19, 20, 23, 25 Department of Agriculture v. Moreno, 413 U.S. 528 (1973).....................................................................14 District of Columbia v. Heller, 554 U.S. 570 (2008)......................................................................27, 31 F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920).....................................................................14 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) .....................................................31 Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012).....................................................12, 25
- 5. iii TABLE OF AUTHORITIES—Continued Page(s) Hall v. Florida, 134 S. Ct. 1986 (2014) ...........................27 Hamby v. Parnell, No. 14-089, 2014 WL 5089399 (D. Alaska Oct. 12, 2014).......................15, 20 Heller v. Doe, 509 U.S. 312 (1993).............................14, 25 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)...............3 Hunter v. Erickson, 393 U.S. 385 (1969)........................26 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) .............................................................................17 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013).............................................................27 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).........................31 Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32 (1928) .......................................................14 Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014) .......................................................................15, 17 Loving v. Virginia, 388 U.S. 1 (1967)..................7, 8, 9, 30 Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964)...................................28 M.L.B. v. S.L.J., 519 U.S. 102 (1996).................................8 Maynard v. Hill, 125 U.S. 190 (1888)...............................7 McDonald v. City of Chicago, 561 U.S. 742 (2010)............................................................................29 Meyer v. Nebraska, 262 U.S. 390 (1923)...........................8 Miller-El v. Cockrell, 537 U.S. 322 (2003).....................27
- 6. iv TABLE OF AUTHORITIES—Continued Page(s) New York State Club Ass’n v. City of New York, 487 U.S. 1 (1988) ..............................................14 New York Times v. Sullivan, 376 U.S. 254 (1964)............................................................................31 Palmore v. Sidoti, 466 U.S. 429 (1984)...........................24 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).................................................9, 20, 25 Pierce v. Society of Sisters, 268 U.S. 510 (1925)..............8 Schuette v. Coalition To Defend Affirmative Action, 134 S. Ct. 1623 (2014) .............................28, 29 Searcy v. Strange, No. 14-208, 2015 WL 328728 (S.D. Ala. Jan. 23, 2015).............................................15 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) .......................................................8 Stanton v. Stanton, 421 U.S. 7 (1975).............................23 Taylor v. Louisiana, 419 U.S. 522 (1975).......................24 Trammel v. United States, 445 U.S. 40 (1980)..............24 Turner v. Safley, 482 U.S. 78 (1987).................................8 United States v. Lopez, 514 U.S. 549 (1995)...................28 United States v. Windsor, 133 S. Ct. 2675 (2013)...................................................................passim Watson v. City of Memphis, 373 U.S. 526 (1963)..........26 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)....................................30 Widmar v. Vincent, 454 U.S. 263 (1981) ........................31
- 7. v TABLE OF AUTHORITIES—Continued Page(s) Williams v. Illinois, 399 U.S. 235 (1970) .......................25 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .............................................................................21 Wisconsin v. Yoder, 406 U.S. 205 (1972)........................31 Zablocki v. Redhail, 434 U.S. 374 (1978) .....................6, 8 DOCKETED CASES Loving v. Virginia, Appellee Brief, 388 U.S. 1 (1967) (No. 66-395)......................................................30 Perry v. Schwarzenegger, Transcript, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292).............8 CONSTITUTIONAL AND STATUTORY PROVISIONS Ala. Const. art. I, §3.01 .......................................................5 Ariz. Rev. Stat. Ann. §§41-1493 to -1493.02 ....................5 Conn. Gen. Stat. Ann. §52-571b.........................................5 D.C. Code §46-406(e)...........................................................5 Fla. Stat. Ann. §§761.01-.05 ...............................................5 Idaho Code Ann. §§73-401 to -404.....................................5 775 Ill. Comp. Stat. Ann. 35/1-/99......................................5 Kan. Stat. Ann. §§60-5301 to -5305 ...................................5 Ky. Rev. Stat. Ann. §446.350 .............................................5 La. Rev. Stat. Ann. §§13:5231-:5242 .................................5 Md. Const., Declaration of Rights art. 36 ........................5 Miss. Code Ann. §11-61-1 ...................................................5
- 8. vi TABLE OF AUTHORITIES—Continued Page(s) Mo. Ann. Stat. §§1.302-.307................................................5 N.M. Stat. §§28-22-1 to -5...................................................5 Okla. Stat. Ann. tit. 51, §§251-258.....................................5 71 Pa. Cons. Stat. Ann. §§2401-2407.................................5 Pa. Const. art. 1, §3 .............................................................5 R.I. Gen. Laws §§42-80.1-1 to -4........................................5 S.C. Code Ann. §§1-32-10 to -60 ........................................5 Tenn. Code Ann. §4-1-407...................................................5 Tex. Civ. Prac. & Rem. Code. Ann. §§110.001- .012..................................................................................5 Utah Code Ann. §§63L-5-101 to -403................................5 Va. Code Ann. §§57-1 to -2.02............................................5 Va. Const. art. 1, §16...........................................................5 OTHER AUTHORITIES 2 Burke, Edmund, The Works of the Right Honourable Edmund Burke (Bell ed. 1892) ..........25 Cameron, David, Address to the Conservative Party Conference (Oct. 5, 2011), available at http://www.bbc.co.uk/news/uk-politics- 15189614.......................................................................13 Cherlin, Andrew J., American Marriage in the Early Twenty-First Century, in 15 The Future of Children 33 (2005)....................................10 Chernow, Ron, Washington: A Life (2010)....................22
- 9. vii TABLE OF AUTHORITIES—Continued Page(s) Choper, Jesse H. & John C. Yoo, Can the Government Prohibit Gay Marriage?, 50 S. Tex. L. Rev. 15 (2008)..........................................11, 22 2 de Tocqueville, Alexis, Democracy in America (Henry Reeve trans., Saunders & Otley 1835).....................................................................7 Farr, Rachel H., et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164 (2010)...................20 Federalist No. 78 (Hamilton) (Jacob E. Cooke ed., 1961) ......................................................................29 Gates, Gary J., LGBT Parenting in the United States (Feb. 2013), available at http:// escholarship.org/uc/item/9xs6g8xx..........................11 Goldberg, Abbie E. & JuliAnna Z. Smith, Predictors of Psychological Adjustment in Early Placed Adopted Children With Lesbian, Gay, and Heterosexual Parents, 27 J. Family Psychol. 431 (2013)...............................21 Goldwater, Barry, The Conscience of a Conservative (1960)....................................................31 Goldwater, Barry, Speech at the Republican National Convention (July 16, 1964), avail- able at http://www.washingtonpost.com/ wp-srv/politics/daily/may98/goldwaterspee ch.htm.............................................................................3
- 10. viii TABLE OF AUTHORITIES—Continued Page(s) Institute for American Values, When Marriage Disappears: The New Middle America (2010)............................................................................10 Lavner, Justin A., et al., Can Gay and Lesbian Parents Promote Healthy Development in High-Risk Children Adopted From Foster Care?, 82 Am. J. Orthopsychiatry 465 (2012)............................................................................21 Madison, James, Speech in Congress on the Removal Power (June 8, 1789), in 1 Annals of Cong. 448 (Joseph Gales ed., 1790) ......................29 Perrin, Ellen C., et al., Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002)............................................................................20 Supreme Court Rule 37.6...................................................1 van Gelderen, Loes, et al., Quality of Life of Adolescents Raised From Birth by Lesbian Mothers: The US National Longitudinal Family Study, 33 J. Developmental & Behav. Pediatrics 17 (2012).......................................21 5 The Writings of James Madison: 1787-1790 (Gaillard Hunt ed., 1904) ...........................................28
- 11. INTEREST OF AMICI CURIAE1 Amici are social and political conservatives, moder- ates, and libertarians from diverse backgrounds. Many have served as elected or appointed officeholders in various Presidential administrations, as governors, mayors, and other officeholders in States and cities across the Nation, as members of Congress, as ambas- sadors, as military officers, as officials in political cam- paigns and political parties, and as advocates and activ- ists for various political and social causes. Amici sup- port traditional conservative values, including the be- lief in the importance of stable families, as well as the commitment to limited government and the protection of individual freedom. Because they believe that those conservative values are consistent with—indeed, are advanced by—affording civil marriage rights to same- sex couples, amici submit that the decision below should be reversed. A full list of amici is provided as an Appendix to this brief. SUMMARY OF ARGUMENT In 2013, this Court struck down the federal Defense of Marriage Act (“DOMA”), concluding that the law— which refused to honor for federal purposes the mar- riages of same-sex couples validly married under State law—violated the core promises of the United States 1 By letters on file with the Clerk, all parties have consented to the filing of this brief. Pursuant to Supreme Court Rule 37.6, amici state that no counsel for a party authored this brief in whole or in part; no counsel or party made a monetary contribution in- tended to fund the preparation or submission of this brief; and no person—other than amici or their counsel—made such a monetary contribution.
- 12. 2 Constitution. See United States v. Windsor, 133 S. Ct. 2675 (2013). The Court in Windsor recognized that the “[r]esponsibilities” attendant to marriage, “as well as [the] rights, enhance the dignity and integrity of the person.” Id. at 2694. The Court therefore held that a law treating same-sex couples differently from others by withholding those rights and responsibilities “de- means” same-sex couples, “impose[s] inequality” and “a stigma” on them, denies them “equal dignity,” treats them as “unworthy,” and “humiliates” and makes vul- nerable their children. Id. at 2693-2694. Those children, the Court explained, should not be “instruct[ed]” that the marriage of the parents who provide for and raise them “is less worthy”—and neither they nor their par- ents should suffer from the law’s placement of “same- sex couples in an unstable position” of having “second- tier” relationships. Id. at 2694, 2696. Thus, this Court rejected a law that would “restrict the freedom” of those couples and infringe “the liberty of the person” by “impos[ing] a disability on the class”—by “dispar- ag[ing]” and “injur[ing]” a set of individuals entitled to “personhood and dignity.” Id. at 2693, 2695-2696. Although amici hold a broad spectrum of socially and politically conservative, moderate, and libertarian views, amici share the view that laws that bar same-sex couples from the institution of civil marriage, with all its attendant profoundly important rights and respon- sibilities, are inconsistent with the United States Con- stitution’s dual promises of equal protection and due process. The marriage bans challenged here, like the act at issue in Windsor, target gay and lesbian couples and their families for injurious governmental treat- ment. The bans are accordingly inconsistent with ami- ci’s understanding of the properly limited role of gov- ernment. Rather, amici embrace Barry Goldwater’s
- 13. 3 expression of that understanding, namely that “[w]e do not seek to lead anyone’s life for him—we seek only to secure his rights and to guarantee him opportunity to strive, with government performing only those needed and constitutionally sanctioned tasks which cannot oth- erwise be performed.”2 Amici further believe that when the government does act in ways that affect individual freedom in mat- ters of family and child-rearing, it should promote fami- ly-supportive values like responsibility, fidelity, com- mitment, and stability. Much has been written about the deleterious impact of family breakdown in our Na- tion today. There is a need for more Americans to choose to participate in the institution of marriage. Yet these bans, by denying each member of an entire class of American citizens the right to marry the person he or she loves, discourage those important family values. They discourage responsibility, fidelity, and commit- ment. And they harm children, denying them and their loving parents the basic legal protections that provide stability and security so critical to child-rearing. Many of the signatories to this brief previously did not support civil marriage for same-sex couples; others did not hold a position on the issue until recently. The list of signatories to this brief overlaps with, but also extends beyond, those who joined a similar brief in Hol- lingsworth v. Perry, 133 S. Ct. 2652 (2013), likewise supporting there the couples challenging California’s marriage-restrictive Proposition 8. As civil marriage has become a reality for same-sex couples in 36 States and the District of Columbia, amici, like many Ameri- 2 Goldwater, Speech at the Republican National Convention (July 16, 1964), available at http://www.washingtonpost.com/wp- srv/politics/daily/may98/goldwaterspeech.htm.
- 14. 4 cans, have considered the results, reexamined their own positions, and concluded that there is no legitimate, fact- based reason for denying same-sex couples the same recognition in law that is available to opposite-sex cou- ples. Rather, amici have concluded that marriage is strengthened, and its value to society and to individual families and couples is promoted, by providing access to civil marriage for all American couples—heterosexual or gay or lesbian alike. In particular, civil marriage provides stability for the children of same-sex couples, the value of which cannot be overestimated. In light of these conclusions, amici believe that the Fourteenth Amendment prohibits States from denying same-sex couples the legal rights and responsibilities that flow from the institution of civil marriage. This is especially true where, as here, the validity of thousands of existing marriages of same-sex couples could be thrown into doubt by a contrary ruling. Indeed, amici’s concern for the stability of existing and future families is particular- ly heightened in this context. Amici acknowledge that deeply held social, cultural, and religious tenets may lead sincere and fair-minded people to take the opposite view. But no matter how strong, sincere, or longstanding these views, they can- not, under our constitutional system, serve as the basis for denying this class of people access to the institution of civil marriage in the absence of a legitimate, fact- based governmental goal. Amici take this position with the understanding that requiring access to civil mar- riage for same-sex couples—which is the only issue raised in these cases—need not pose any threat to reli- gious freedom or to the institution of religious mar- riage. Amici believe firmly that religious individuals and organizations should, and will, express their own views and make their own decisions about whether and
- 15. 5 how to participate in marriages between persons of the same sex, and that the government should not intervene in those decisions—just as it must not intervene in these couples’ decisions to participate in the institution of civil marriage.3 3 Amici support the free exercise of religion, and have the deepest respect for those who defend it. Given the robust federal and State protections for the free exercise of religion, however, amici do not believe that access to civil marriage for same-sex cou- ples should pose a threat to religious freedom. Amici note, for in- stance, that many States have expansive constitutional protections for religious liberty. See, e.g., Pa. Const. art. 1, §3 (“no human au- thority can, in any case whatever, control or interfere with the rights of conscience”); Md. Const., Declaration of Rights art. 36; Va. Const. art. 1, §16. And numerous States have enacted statutes designed to ensure religious liberty, both generally and in connec- tion with access to civil marriage for same-sex couples. See, e.g., Ky. Rev. Stat. Ann. §446.350 (the government may not burden a person’s exercise of religion except through the least restrictive means available, and for a compelling purpose); D.C. Code §46- 406(e) (religious societies or nonprofit organizations controlled by religious societies are not required to provide services or accom- modations related to the celebration of any marriage, or to pro- mote any marriage through its programs, counseling, or retreats); see also Conn. Gen. Stat. Ann. §52-571b; R.I. Gen. Laws §§42-80.1- 1 to -4; 775 Ill. Comp. Stat. Ann. 35/1-/99; Fla. Stat. Ann. §§761.01- .05; Ala. Const. art. I, §3.01; Ariz. Rev. Stat. Ann. §§41-1493 to - 1493.02; S.C. Code Ann. §§1-32-10 to -60; Tex. Civ. Prac. & Rem. Code. Ann. §§110.001-.012; Idaho Code Ann. §§73-401 to -404; N.M. Stat. §§28-22-1 to -5; Okla. Stat. Ann. tit. 51, §§251-258; 71 Pa. Cons. Stat. Ann. §§2401-2407; Mo. Ann. Stat. §§1.302-.307; Va. Code Ann. §§57-1 to -2.02; Utah Code Ann. §§63L-5-101 to -403; Tenn. Code Ann. §4-1-407; La. Rev. Stat. Ann. §§13:5231-:5242; Kan. Stat. Ann. §§60-5301 to -5305 (2013); Miss. Code Ann. §11-61- 1. These laws, as well as the protections afforded by the First Amendment, reflect our Nation’s commitment to the accommoda- tion of diverse perspectives. In a tolerant society, the right to marry can and should coexist with the right to disagree respectful- ly and to decline to participate as individuals based on sincerely held religious beliefs.
- 16. 6 Amici believe strongly in the principle of judicial restraint, under which courts generally defer to legislatures and the electorate on matters of social policy. Amici also believe that courts should not rush to invoke the Constitution to remove issues from the normal democratic process. But amici equally believe that actions by legislatures and popular majorities can on occasion pose significant threats to individual freedom and that, when they do, courts have the power to—and should—intervene. Our constitutional tradition empowers and requires the judiciary to protect our most cherished liberties against overreaching by the government, including overreach through an act of the legislature or electorate. That principle, no less than our commitment to democratic self-government, is necessary to individual freedom and limited government. It is precisely at moments like this one—when discriminatory laws appear to reflect unexamined and unwarranted assumptions rather than facts and evidence, and the rights of one group of citizens hang in the balance—that the courts’ intervention is most needed. Amici accordingly urge this Court to reverse the judgment below. ARGUMENT I. EQUAL ACCESS TO CIVIL MARRIAGE PROMOTES THE CONSERVATIVE VALUES OF STABILITY, MUTUAL SUPPORT, AND MUTUAL OBLIGATION Amici start from the premise—recognized by this Court on numerous occasions—that marriage is a fundamental right protected by our Constitution and a venerable institution that confers countless other rights and responsibilities, both upon those who marry and upon society at large. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“Marriage is a coming
- 17. 7 together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” (internal quotation marks omitted)). By reinforcing essential values such as commitment, faithfulness, responsibility, and sacrifice, marriage is the foundation of the secure families that form the building blocks of our communities and our Nation. See Maynard v. Hill, 125 U.S. 190, 205, 211 (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”). It both provides a protective shelter and reduces the need for reliance on the state. As a perceptive observer of American society wrote almost two centuries ago, “There is certainly no country in the world where the tie of marriage is so much respected as in America …. [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace.… [H]e afterwards carries [that image] with him into public affairs.” 2 de Tocqueville, Democracy in America 230 (Reeve trans., Saunders & Otley 1835). Choosing to marry is also a paradigmatic exercise of human liberty. Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”). Those who have been denied the right to marry may be the most eloquent witnesses to its fundamental importance to liberty. As an expert on the history of marriage observed, “[w]hen slaves were emancipated, they
- 18. 8 flocked to get married. And this was not trivial to them, by any means. [One] ex-slave who had also been a Union soldier ... declared, ‘The marriage covenant is the foundation of all our rights.’” Transcript 202-203, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292). Moreover, the mutual dependence and obligation fostered by marriage affirmatively advance the appropriately narrow and modest role of government. For those who choose to marry, the rights and responsibilities conveyed by civil marriage provide a bulwark against unwarranted government intervention into deeply personal concerns such as medical and child-rearing decisions. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925) (affirming “the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (recognizing “the power of parents to control the education of their own”). Thus, this Court has recognized on numerous occasions that the freedom to marry is one of the fundamental liberties that an ordered society must strive to protect and promote.4 4 See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic im- portance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disre- gard, or disrespect.” (citation omitted)); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right” and an “expression[] of emotional support and public commitment.”); Zablocki, 434 U.S. at 384 (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12; Meyer, 262 U.S. at 399 (the right “to marry, establish a home and bring up children” is a central part of constitutionally protected liberty); see also, e.g., Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971)
- 19. 9 This Court has reaffirmed that freedom by securing marriage rights for prisoners, Turner v. Safley, 482 U.S. 78, 95 (1987); striking down laws requiring court permission to marry, Zablocki, 434 U.S. at 388; and eliminating discriminatory restrictions on the right to marry, Loving, 388 U.S. at 12; Windsor, 133 S. Ct. at 2696. “Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence.” DeBoer v. Snyder, 973 F. Supp. 2d 757, 774 (E.D. Mich.), rev’d, 772 F.3d 388 (6th Cir. 2014). Our national commitment to civil marriage—and this Court’s recognition of its fundamental status— reflects a common understanding that those who choose to marry benefit tremendously from the stability and mutual support and obligation that the legal relationship confers. Some of these protections are concrete. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 962 (N.D. Cal. 2010) (married couples “fare better. They are physically healthier. They tend to live longer. They engage in fewer risky behaviors. They look better on measures of psychological well- being”). Others are yet more profound, as the legal relationship of marriage distinctly confers on couples— and their children—numerous enhancements to individual autonomy and family security. For instance, marriage makes it immeasurably easier for family members to plan with and decide for one another. Married individuals can make medical (“[M]arriage involves interests of basic importance in our society” and is “a fundamental human relationship.”); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (marriage is “one of the basic civil rights of man”).
- 20. 10 decisions together (or for each other if one spouse is not able to make a decision) and can make joint decisions for the upbringing of children; they can plan jointly for their financial future and their retirement; they can hold property together; they can share a spouse’s medical insurance policy and have the health coverage continue for a period after a spouse’s death; and they have increased protections against creditors upon the death of a spouse. Some—not all—of these rights and responsibilities can be approximated outside marriage with expensive legal assistance, but only marriage provides a family with the security that those rights and responsibilities will be automatically available when they are most needed. Perhaps most importantly, marriage protects children. “We know, for instance, that children who grow up in intact, married families are significantly more likely to graduate from high school, finish college, become gainfully employed, and enjoy a stable family life themselves[.]” Institute for American Values, When Marriage Disappears: The New Middle America 52 (2010); see also id. at 95 (“Children who grow up with cohabiting couples tend to have more negative life outcomes compared to those growing up with married couples. Prominent reasons are that cohabiting couples have a much higher breakup rate than do married couples, a lower level of household income, and a higher level of child abuse and domestic violence.” (footnote omitted)). These protections have become even more critical in recent decades, as marital rates have declined and child-rearing has become increasingly untethered to marriage. See, e.g., Cherlin, American Marriage in the Early Twenty-First Century, in 15 The Future of Children 33, 35-36 (2005).
- 21. 11 The protections that marriage offers couples and their children do not depend on whether the individuals forming the married couple are of the same or opposite sexes. Same-sex couples, just like couples composed of a man and a woman, benefit from the security and bilateral loyalty conferred by civil marriage. The same is true for the children of those couples; it is stability, not the sex of their parents, that protects them. See infra pp. 18-21. The salutary effects of civil marriage do not arise to any lesser degree when two women or two men lawfully marry each other than when a man and a woman marry. As Professors Jesse Choper and John Yoo—who support civil marriage for same-sex couples as a policy choice—have explained: With regard to gay marriage, the cost of a prohibition is the restriction of the liberty of two individuals of the same sex who seek the same legal status for an intimate relationship that is available to individuals of different sexes. This harm may not be restricted just to the individuals involved but may also involve broader social costs. If the government believes that marriage has positive benefits for society, some or all of those benefits may attach to same-sex marriages as well. Stable relationships may produce more personal income and less demands on welfare and unemployment programs; it may create the best conditions for the rearing of children; and it may encourage individuals to invest and save for the future. Choper & Yoo, Can the Government Prohibit Gay Marriage?, 50 S. Tex. L. Rev. 15, 33-34 (2008).
- 22. 12 There is no question that the hundreds of thou- thousands of children being raised by same-sex couples5 —some married, some precluded from marrying—would be protected by the security and stability that civil marriage confers. This Court has already suggested as much. See Windsor, 133 S. Ct. at 2694 (recognizing that DOMA placed same-sex couples in the “unstable position” of a “second-tier” relationship that “humiliate[d]” and harmed the children being raised by those couples); id. at 2695 (rejecting DOMA’s imposition of “financial harm [on] children of same-sex couples” by depriving their families of various marital rights and responsibilities). The denial of civil marriage to same-sex couples does not mean that their children will be raised by married opposite-sex couples. Rather, the choice here is between allowing same-sex couples to marry versus depriving their children of married parents altogether. Indeed, a decision that States may exclude same-sex couples from civil marriage might call into doubt the status of marriages that have already been lawfully recognized, legally erasing existing families—an even starker humiliation than that condemned in Windsor. Courts across the country have repeatedly found “that it was the government’s failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex.” Bourke v. Beshear, 996 F. Supp. 2d 542, 553 (W.D. Ky.), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014); see also, e.g., Golinski v. OPM, 824 F. Supp. 2d 968, 992 (N.D. Cal. 2012) (“The denial of recognition and 5 See Gates, LGBT Parenting in the United States 1 (Feb. 2013), available at http://escholarship.org/uc/item/9xs6g8xx (“More than 125,000 same-sex couple households … include nearly 220,000 children under age 18.”).
- 23. 13 withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents[.]”). It is precisely because marriage is so important in producing and protecting strong and stable family structures that the goal of strengthening families favors civil marriage for same-sex couples. As British Prime Minister and Conservative Party Leader David Cameron explained, “Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”6 II. THE FOURTEENTH AMENDMENT REQUIRES EQUAL ACCESS TO CIVIL MARRIAGE BECAUSE THERE IS NO LEGITIMATE, FACT-BASED JUSTIFICATION FOR GOVERNMENT TO EXCLUDE SAME-SEX COUPLES IN COMMITTED RELATIONSHIPS In Windsor, this Court held that DOMA was invalid because it “differentiat[ed]” same-sex couples in terms of their marital rights and responsibilities, rendering them “second-tier” and “humiliat[ing]” the children being raised by them. 133 S. Ct. at 2694. This unequal classification of citizens, the Court explained, exceeds the government’s authority in light of the Constitution’s guarantees of equal protection, which “withdraw[] from Government the power to degrade or demean” in that manner. Id. at 2695. This Court ruled that “no legitimate purpose overcomes the purpose and 6 Cameron, Address to the Conservative Party Conference (Oct. 5, 2011), available at http://www.bbc.co.uk/news/uk-politics- 15189614.
- 24. 14 effect to disparage and to injure” individuals who are entitled to “personhood and dignity.” Id. at 2696. Just as in Windsor, the laws in these cases have the “purpose and practical effect … to impose a disadvantage, a separate status, and so a stigma” on same-sex couples with respect to civil marriage rights and responsibilities. Id. at 2693. Laws that classify citizens and render them unequal in their access to civil rights and responsibilities raise grave constitutional questions, and at a minimum such laws must have “reasonable support in fact,” New York State Club Ass’n v. City of N.Y., 487 U.S. 1, 17 (1988), and must “operate so as rationally to further” a legitimate government goal, Department of Agric. v. Moreno, 413 U.S. 528, 537 (1973). To survive scrutiny under the Equal Protection Clause, a law must at the very least be founded in the “realities” of the subject covered by that law. Heller v. Doe, 509 U.S. 312, 321 (1993) (“[E]ven the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.”). “[C]lassification[s] must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920); see also Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (attitudes unsubstantiated by relevant facts are not sufficient to indicate the furtherance of a legitimate government purpose); Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 36- 37 (1928) (“[M]ere difference is not enough; the attempted classification ‘must always rest upon some
- 25. 15 difference which bears a reasonable and just relation to the act[.]’”). Recent rulings in civil marriage cases have observed that discrimination against same-sex couples in this context cannot survive any level of review because it is not rationally related to a legitimate governmental purpose grounded in fact. See, e.g., DeBoer, 973 F. Supp. 2d at 768 (“The Court finds that the [Michigan Marriage Amendment] impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause because the provision does not advance any conceivable legitimate state interest.”), rev’d, 772 F.3d 388 (6th Cir. 2014); Searcy v. Strange, No. 14-208, 2015 WL 328728, at *5 (S.D. Ala. Jan. 23, 2015) (“If anything, Alabama’s prohibition … detracts from its goal of promoting optimal environments for children.”); Hamby v. Parnell, No. 14-089, 2014 WL 5089399, at *12 (D. Alaska Oct. 12, 2014) (“Alaska’s same-sex marriage laws are a prime example of how ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.’”); Love v. Beshear, 989 F. Supp. 2d 536, 547 (W.D. Ky. 2014) (“Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard.”). Amici do not believe there is a legitimate, fact- based justification for excluding same-sex couples from civil marriage. Over the past two decades, the arguments presented by proponents of such initiatives have been discredited by social science, rejected by courts, and contradicted by amici’s personal experience with same-sex couples, including those whose civil marriages have been legally performed and recognized
- 26. 16 in various States. Amici thus do not believe that any “reasonable support in fact” exists for arguments that allowing same-sex couples to join in civil marriage will damage or distort the institution, jeopardize children, or cause any other social ills. Rather, the facts and evidence show that permitting civil marriage for same- sex couples will enhance the institution, protect children, and benefit society generally. Banning marriage for same-sex couples, in contrast, undermines these critical societal goals: Such bans impede family formation, harm children, and discourage fidelity, responsibility, and stability. A. The Facts Do Not Support Any Of The Putative Rationales For Marriage Bans Proponents of laws like those at issue here have advanced several arguments that they contend support the exclusion of same-sex couples from civil marriage, principally relating to the bearing and raising of children. In particular, proponents invoke (1) a child- centric, or ‘‘conjugal,’’ marriage culture: the notion that allowing the marriages of same-sex couples will harm the institution of marriage by severing it from child- rearing; (2) child welfare: the notion that children are better off when raised by two parents of different sexes; and (3) biology: the notions that marriage is important only for opposite-sex couples, who may procreate accidentally, and that children are better off when raised by two biological parents. Each of these arguments reflects an unexamined preconception rather than fact and has been refuted by substantial evidence and common experience. Moreover, as this Court recognized in Windsor, it is the governmental exclusion of same-sex couples from the rights and responsibilities of civil marriage that is most injurious to hundreds of
- 27. 17 thousands of children, as well as to the couples them- themselves. Child-Centric, or “Conjugal,” Marriage Culture. No credible evidence supports the theory that allowing access to civil marriage for same-sex couples has any adverse effect on the reality or the social perception of the institution of marriage as the optimal setting for the raising of children. To the contrary, ending the exclusion of same-sex couples from civil marriage rights would be a clear endorsement of the multiple benefits of marriage—including stability, lifetime commitment, and financial support during crisis and old age—and a reaffirmation of the social value of this institution for all committed couples and their families.7 Marriage has undoubtedly faced serious challenges over the last few decades, as demonstrated by high divorce rates and the greater incidence of child-bearing and child-rearing outside of marriage. Yet there is no evidence to suggest that allowing committed same-sex couples to marry has exacerbated or will in any way accelerate those trends, which have their origins in complex social forces. See, e.g., Kitchen v. Herbert, 755 F.3d 1193, 1223 (10th Cir.) (“We emphatically agree with the numerous cases decided since Windsor that it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of 7 A ruling that marriage bans are consistent with the Four- teenth Amendment would gravely unsettle the lives of thousands of same-sex couples who have married in States where bans have been struck down as unconstitutional. Introducing that uncertain- ty into these couples’ marriages, and into their families’ lives, would be the antithesis of reaffirming the values of stability, struc- ture, and mutual support that underlie amici’s commitment to the institution of civil marriage.
- 28. 18 opposite-sex couples.”), cert. denied, 135 S. Ct. 265 (2014); Love, 989 F. Supp. 2d at 548 (“Excluding same- sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.”). If anything, the way to preserve and promote the institution of civil marriage would be to encourage more couples to marry, not to exclude this entire category of American citizens from what this Court has called “a far-reaching legal acknowledgement of the intimate relationship between two people.” Windsor, 133 S. Ct. at 2692. Such exclusion simply limits the number of Americans who may marry and whose children and families may benefit from the institution of civil marriage. Amici submit that this observation has only been further empirically vindicated in the two years since Windsor. The experience in States in which same-sex couples are no longer excluded from civil marriage has made abundantly clear that marriage serves as a valuable and foundational institution for same-sex couples and opposite-sex couples alike. Evidence has also reinforced that more harm is done to a child-centric marriage culture from depriving same-sex couples in committed relationships—and their children—of the rights and responsibilities of civil marriage, than from opening civil marriage to them. Amici cannot imagine a more vivid illustration of this than Petitioners April DeBoer and Jayne Rowse, two nurses who seek to marry so that they may jointly adopt the three children they have brought into their family, each of whom had been born into an environment that presented special challenges, including prenatal drug abuse. Ending the exclusion of this family from civil marriage, and from the joint adoption opportunity attendant to it, would
- 29. 19 ensure that each of these three children could have two legal parents rather than one, and that both parents could make critical decisions related to the health and welfare of their children. Rather than reinforce this bond between marriage and child-rearing—and the bond between this couple and the children they have committed to raise—Michigan’s exclusionary law sunders it, to the detriment of both this family and the institution of civil marriage. Child Welfare. If there were any persuasive evidence that the civil marriages of same-sex couples were detrimental to children, amici would give it great weight. But there is not. As amici have come to recognize, and as this Court made clear in Windsor, child welfare is imperiled, not advanced, by excluding same-sex parents raising children from civil marriage. First and foremost, legally differentiating their parents “humiliates” those children now being raised by same-sex couples. Windsor, 133 S. Ct. at 2694. In addition, governmental bans on civil marriage rights for same-sex couples threaten their children’s financial security and the stability of their entire families. See, e.g., DeBoer, 973 F. Supp. 2d at 764 (finding that “children being raised by same-sex couples have only one legal parent and are at risk of being placed in ‘legal limbo’ if that parent dies or is incapacitated. Denying same-sex couples the ability to marry therefore has a manifestly harmful and destabilizing effect on such couples’ children.”); see also Windsor, 133 S. Ct. at 2694- 2695 (relying upon a law’s “financial harm to children of same-sex couples” and placement of “same-sex couples in an unstable position” in declaring the law unconstitutional). Rather than disagree, the court of appeals in these cases further enumerated harms, writing that the marriage bans at issue “deprive[]
- 30. 20 [same-sex couples] of benefits that range from the pro- profound (the right to visit someone in a hospital as a spouse or parent) to the mundane (the right to file joint tax returns). These harms affect not only gay couples but also their children.” DeBoer v. Snyder, 772 F.3d 388, 407-408 (6th Cir. 2014). In contrast to the clear evidence of harm to children from laws excluding same-sex couples from civil marriage, there is no grounding in facts or reality to conclude that such exclusion supports or furthers the interests of children. Social scientists have resoundingly rejected the claim that children raised by same-sex parents fare worse than children raised by other couples. Empirical research “gathered during several decades” shows “no systemic difference” between the child-rearing capabilities of same-sex and heterosexual parents, but rather that the sexual orientation of a child’s parent has no measurable effect on the child’s well-being. Perrin et al., Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341, 343 (2002) (finding no differences regarding “emotional health, parenting skills, and attitude towards parenting” between same-sex and other parents, and finding that “[n]o data have pointed to any risk to children as a result of growing up in a family with 1 or more gay parents”); see also Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164, 175 (2010) (finding children adopted by same- sex parents to be “as well adjusted as those adopted by heterosexual parents” and that there were “no significant differences” between same-sex and heterosexual parents “in terms of child adjustment,
- 31. 21 parenting behaviors, or couples’ adjustment”).8 The court of appeals in these cases readily agreed: “[G]ay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.” DeBoer, 772 F.3d at 405. Scientific conclusions about the lack of harm to children raised in same-sex households have only been further vindicated. For instance, recent longitudinal studies of households with same-sex parents have found that the children of these families fared as well as their peers with heterosexual parents on measures of psychological well-being.9 In the adoption context, a 2013 study of children adopted into families with same- sex and opposite-sex parents found that “[c]hildren’s adjustment outcomes did not differ by family type.”10 And a 2012 study found that high-risk children adopted 8 Courts that have examined the evidence have unanimously agreed. See, e.g., DeBoer, 973 F. Supp. 2d at 768; Hamby, 2014 WL 5089399, at *11 & n.99; Perry, 704 F. Supp. 2d at 980. Assertions to the contrary have been exposed as unsupported, biased, or both. See, e.g., DeBoer, 973 F. Supp. 2d at 766-768 (explaining how Mich- igan relied upon a study “hastily concocted at the behest of a third- party funder … [who] clearly wanted a certain result and [the study’s author] obliged,” as well as studies that were methodologi- cally unsound). 9 E.g., van Gelderen et al., Quality of Life of Adolescents Raised From Birth by Lesbian Mothers: The US National Longi- tudinal Family Study, 33 J. Developmental & Behav. Pediatrics 17 (2012). 10 Goldberg & Smith, Predictors of Psychological Adjustment in Early Placed Adopted Children With Lesbian, Gay, and Heter- osexual Parents, 27 J. Family Psychol. 431, 431 (2013).
- 32. 22 from foster care did at least equally well whether adopted by opposite-sex or same-sex parents, “despite gay and lesbian parents raising children with higher levels of biological and environmental risks prior to adoptive placement.”11 Biology. There is also no biological justification for denying civil marriage to same-sex couples. Allowing same-sex couples to marry in no way undermines the importance of marriage for opposite-sex couples who enter into marriage to provide a stable family structure for their children. Indeed, there is no evidence that marriage between individuals of the same sex affects opposite-sex couples’ decisions about procreation, marriage, divorce, or parenting whatsoever. Cf. Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012) (laws burdening same-sex couples’ right to civil marriage “do[] not provide any incremental reason for opposite-sex couples to engage in ‘responsible procreation’”), aff’d, 133 S. Ct. 2675 (2013). Moreover, our society has long recognized that civil marriage also protects and benefits couples who are unable, or who choose not, to bear children. Many married couples adopt children and thus value the child-protective institution of marriage. Others marry after child-bearing age but still benefit from the web of rights and obligations conferred by marriage. In particular, marriage facilitates the opportunity and ability of members of couples to support each other, as well as their vulnerable relatives and fellow community members of any age, and thereby to avoid reliance upon government assistance and intervention. See Windsor, 11 Lavner et al., Can Gay and Lesbian Parents Promote Healthy Development in High-Risk Children Adopted From Fos- ter Care?, 82 Am. J. Orthopsychiatry 465, 465 (2012).
- 33. 23 133 S. Ct. at 2695 (noting that “it is expected that spouses will support each other” as “an essential part of married life”); Choper & Yoo, supra, at 33-34. Whatever the merits behind the speculation that marriage was originally fashioned only to channel the procreative impulse, it has been centuries since marriage was so limited (if it ever was). Our Nation’s first President and his wife had no children together, but their marriage provided a protective family structure for raising Martha Washington’s children by her first marriage as well as her grandchildren, and for the President and Martha Washington themselves. See Chernow, Washington: A Life 78-83, 421-422 (2010). In the present day, hundreds of thousands of children are in fact being raised in loving families with parents of the same sex. The last few decades have demonstrated that many same-sex couples strongly wish to raise children and are doing so; this is a social development that will not be reversed, but will likely only accelerate. Because amici believe that having married parents is optimal for children, they conclude that granting the rights and responsibilities of civil marriage and its recognition to same-sex couples will protect, not harm, their children, as well as the many children who will be raised by same-sex couples in the future. And these children are no less deserving than others of those protections. Indeed, it is amici’s “fervent hope that these children will grow up ‘to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’” DeBoer, 973 F. Supp. 2d at 775 (quoting Windsor, 133 S. Ct. at 2694).
- 34. 24 B. Even If The Marriage Bans Were Based On Concerns For Tradition And Caution In The Face Of Societal Change, That Does Not Sustain Their Constitutionality That governments may have long treated same-sex couples differently from opposite-sex couples where civil marriage is concerned does not by itself provide a permissible justification for discriminatory laws like the marriage bans at issue here. The rule that a classification must find support in a legitimate factual justification—not simply in its historical pedigree—is central to our constitutional tradition. This Court’s gender discrimination cases, in particular, make clear that formerly widespread traditional views alone cannot justify a discriminatory law under even the most permissive standard of review. Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (“old notions” and “role-typing” did not supply a rational basis for classification); see also Craig v. Boren, 429 U.S. 190, 198-199 (1976) (rejecting “increasingly outdated misconceptions” as “loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy”). This Court has not hesitated to reconsider a law’s outmoded justifications and, where appropriate, to deem them insufficient to survive an equal protection challenge. See, e.g., Trammel v. United States, 445 U.S. 40, 52 (1980) (rejecting basis for law discriminating based on sex because its “ancient foundations … have long since disappeared” as “[c]hip by chip, over the years those archaic notions [of women’s roles] have been cast aside”); Taylor v. Louisiana, 419 U.S. 522, 537 (1975) (“If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time
- 35. 25 has long since passed.”). The governmental bans at is- issue here rest on similarly ungrounded, archaic, and obsolete beliefs—however sincerely, strongly, or long held—and thus the Fourteenth Amendment requires recognition of the bans’ invalidity. This Court has long made clear that, when personal liberty is at stake, the Constitution cannot continue to enshrine previously unexamined societal assumptions once new facts and information come to light. See Palmore v. Sidoti, 466 U.S. 429, 434 (1984) (reversing court of appeals’ decision that a child could be removed from the mother’s custody because the mother had entered into an interracial marriage); Brown v. Board of Educ., 347 U.S. 483, 492-494 (1954) (“[W]e cannot turn the clock back to … 1896 when Plessy v. Ferguson was written …. Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [that racial segregation denotes inferiority] is amply supported by modern authority.”). Courts in cases like these have thus rejected the bare invocation of tradition as a sufficient rational basis for precluding same-sex couples from access to civil marriage. See DeBoer, 973 F. Supp. 2d at 772 ( “‘The basic guarantees of our Constitution are warrants for the here and now’”); Bourke, 996 F. Supp. 2d at 552 (holding that tradition cannot alone justify infringement of individual liberties); Golinski, 824 F. Supp. 2d at 998 (“[T]he argument that the definition of marriage should remain the same for the definition’s sake is a circular argument, not a rational justification.”); Perry, 704 F. Supp. 2d at 998 (“[T]he state must have an interest apart from the fact of the tradition itself.”).
- 36. 26 Although amici firmly believe that beneficial insti- institutions like marriage should not be changed lightly, embracing marriage for same-sex couples would not change the institution of marriage; it would strengthen that institution. Moreover, amici do not believe that courts are bound to disregard facts when considering outmoded and injurious laws that stand against any rectifying change. See 2 Burke, The Works of the Right Honourable Edmund Burke 295 (Bell ed. 1892) (“A state without the means of some change is without the means of its conservation.”). Our Nation has undergone too many changes for the better already— especially in its repudiation of discrimination against minorities—to allow social policy to be dictated by unexamined hypotheses undermined by evidence. Thus, a law cannot be sustained when it no longer reflects the “realities of the subject” that law addresses. Heller, 509 U.S. at 321; see also id. at 326 (“Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”); Williams v. Illinois, 399 U.S. 235, 239 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack[.]”). It is the traditional values served by civil marriage—responsibility, fidelity, commitment, and stability, among others—that amici believe justify its equal availability under law. Those values would be served by ending governmental exclusion of same-sex couples from the institution of civil marriage, not by perpetuating it.12 12 To be sure, some Americans hold deep-seated religious ob- jections to same-sex couples marrying. But amici do not believe that civil marriage rights can or need be withheld from same-sex couples for fear that the religious freedom of the faithful will be
- 37. 27 Thus, amici view the court of appeals’ invocations of “[a] Burkean sense of caution” and a “wait-and-see approach,” DeBoer, 772 F.3d at 406, 409, as misplaced. The laws at issue here are anything but cautious, as they enact permanent government exclusions of same- sex couples from civil marriage—exclusions that are, in many instances, enshrined against ordinary legislative revision. That very lack of caution is made clear by the fact that none of the governments has grounded its purported caution in anything more than speculation that unspecified adverse consequences could result. This Court does not treat caution, by itself, as a sufficient justification to deny individuals equal access to fundamental rights. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 535-536 (1963) (rejecting a government’s purported interest in proceeding with “gradual” change); Hunter v. Erickson, 393 U.S. 385, 392 (1969) (rejecting a government “decision to move slowly in the delicate area”). And, as governments “can plead an interest in proceeding with caution in almost any setting,” Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1213 (D. Utah 2013), treating such an interest as sufficient to sustain otherwise discriminatory laws would render this Court’s review a nullity. Such a result is untenable; as this Court recently confirmed, even a government’s desire to avail itself of the benefit of State-by-State experimentation “may not deny the infringed. As discussed supra note 3, the First Amendment and analogous State laws provide ample protection for expressions of diverging views on the subject. And amici see no reason why a decision from this Court holding that the Fourteenth Amendment requires State governments to solemnize and recognize marriages between same-sex couples should in any way prejudice the rights of the faithful to voice their opinions on the subject, nor require them to participate in or otherwise endorse civil marriages for same-sex couples based on their sincerely held religious beliefs.
- 38. 28 basic dignity the Constitution protects.” Hall v. Flori- Florida, 134 S. Ct. 1986, 2001 (2014). Indeed, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” District of Columbia v. Heller, 554 U.S. 570, 636 (2008). The choice to enact a law that deprives committed same-sex couples and their children of the rights and responsibilities of civil marriage is one of those. III. THIS COURT SHOULD ENSURE THAT GOVERNMENTS DO NOT DENY THE RIGHTS AND RESPONSIBILITIES OF CIVIL MARRIAGE TO SAME-SEX COUPLES Amici recognize the admirable commitment of our judiciary to exercise restraint when confronted with a provision duly enacted by the people or their representatives. But “deference does not imply abandonment or abdication of judicial review.” Miller- El v. Cockrell, 537 U.S. 322, 340 (2003). State governments do not have “unfettered discretion to define the full scope of the constitutional protection” in cases concerning individual rights and dignity. Hall, 134 S. Ct. at 1998. Instead, it is the courts’ role to set aside laws that overstep the limits imposed by the Constitution—these limits reflect a different kind of restraint, which the people wisely imposed to protect segments of the population from deprivation of their liberties without a legitimate basis. As Madison put it, In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
- 39. 29 5 The Writings of James Madison: 1787-1790, at 272 (Hunt ed., 1904). Likewise, while it is the duty of the political branches of government “in the first and primary instance” “to preserve and protect the Constitution,” the judiciary must not “admit inability to intervene when one or the other level of Government has tipped the scales too far.” United States v. Lopez, 514 U.S. 549, 577-578 (1995) (Kennedy, J., concurring). This Court has repeatedly made clear that although legislators and voters may generally exercise power over certain subjects—including many contentious social issues—the government’s power is limited when it comes to injurious incursions upon the freedom of minorities. See, e.g., Schuette v. Coalition To Defend Affirmative Action, 134 S. Ct. 1623, 1636-1637 (2014) (plurality opinion) (emphasizing that the Constitution requires redress by the courts when “the encouragement or command of laws or other state action” inflicts “hurt or injury” on minorities); Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736- 737 (1964) (“A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”). The court of appeals mistook this Court’s teachings for a mandate to refrain from judgment even where it is individuals and their freedoms, not the democratic process, that are being “demean[ed].” Windsor, 133 S. Ct. at 2694 (placing “same-sex couples in an unstable position” and treating their relationships as “second-tier” is a “differentiation [that] demeans the couple”); see DeBoer, 772 F.3d at 409 (quoting Schuette, 134 S. Ct. at 1637). It is accordingly not a violation of principles of judicial restraint for this Court to strike down laws that infringe “fundamental rights necessary to our system of ordered liberty,” McDonald v. City of Chicago, 561
- 40. 30 U.S. 742, 778 (2010), particularly where they inflict “re- “real and specific injury,” Schuette, 134 S. Ct. at 1631, 1636-1638. It is instead a key protection of limited, constitutionally constrained government. See Federalist No. 78, at 524 (Hamilton) (Cooke ed., 1961) (“[A] limited constitution … can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.”); see also Madison, Speech in Congress on the Removal Power (June 8, 1789), in 1 Annals of Cong. 448, 457 (Gales ed., 1790) (“[I]ndependent tribunals … will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution[.]”). The right to marry indisputably falls within the narrow band of specially protected liberties that this Court ensures are protected from unwarranted curtailment. This Court’s special solicitude for marriage is manifest in its decision in Loving. There, this Court held a State ban on interracial marriage invalid under the Fourteenth Amendment, rejecting arguments that the Court should not address an issue of exclusively State concern and that social science evidence demonstrated that interracial marriage harmed children, led to higher divorce rates, and weakened the marital bond. See Appellee Br., Loving, 388 U.S. 1 (No. 66-395).13 13 This Court struck down Virginia’s ban on interracial mar- riage in Loving even though States were actively debating wheth- er to repeal or to continue enforcing such laws. 388 U.S. at 6 & n.5; see also id. at 7-8. This Court’s action did not improperly short-
- 41. 31 The bans at issue here have run afoul of our consti- tutional order by submitting a fundamental right to leg- islative or popular referendum. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“It is plain that the electorate as a whole, whether by refer- endum or otherwise, could not order [government] ac- tion violative of the Equal Protection Clause, and the [government] may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic.” (citation omitted)); see also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, … and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”). These cases accordingly present one of the rare instances in which judicial action is necessary to prevent overreaching by the electorate. When fundamental liberties are at stake, personal “choices and assessments … are not for the Government to make,” Citizens United v. FEC, 558 U.S. 310, 372 (2010), and courts must step in to prevent any encroachment upon individual rights. Our constitutional guarantees of freedom are no less a part of our legal traditions than is the salutary principle of judicial restraint, and this Court honors those traditions—as well as conservative principles— circuit ongoing democratic developments in the sixteen States that prohibited interracial marriage at the time, but rather fulfilled this Court’s responsibility to enforce the constitutional guarantee of equal protection.
- 42. 32 when it acts to secure constitutionally protected liber- liberties against government overreaching. Cf. Goldwater, The Conscience of a Conservative 13-14 (1960) (“The Conservative is the first to understand that the practice of freedom requires the establishment of order: it is impossible for one man to be free if another is able to deny him the exercise of his freedom. … He knows that the utmost vigilance and care are required to keep political power within its proper bounds.”). Thus, this Court has invalidated laws infringing the Second Amendment right to self-defense and to bear arms. Heller, 554 U.S. at 635. It has protected the right of all to participate in public debate on issues of public concern. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Buckley v. Valeo, 424 U.S. 1 (1976); New York Times v. Sullivan, 376 U.S. 254 (1964). It has voided application of a State law that interfered with the fundamental “‘liberty of parents … to direct the upbringing and education of children.’” Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). It has protected the rights of religious groups to assemble in and use public facilities. See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395-397 (1993); Widmar v. Vincent, 454 U.S. 263, 276-277 (1981). And two years ago, this Court reaffirmed that “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” Windsor, 133 S. Ct. at 2691 (citing Loving). Our society is more free because the Court has exercised its power and duty to enforce and support the Constitution in such a manner. The Court should do so again in these cases.
- 43. 33 CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. SEAN R. GALLAGHER STACY A. CARPENTER BENNETT L. COHEN POLSINELLI PC 1515 Wynkoop Street Suite 600 Denver, CO 80202 MARK C. FLEMING FELICIA H. ELLSWORTH ELISABETHM.OPPENHEIMER ALLISON TRZOP WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 ALAN E. SCHOENFELD WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 REGINALD J. BROWN SETH P. WAXMAN Counsel of Record PAUL R.Q. WOLFSON DINA B. MISHRA WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 seth.waxman@wilmerhale.com MARCH 2015
- 44. APPENDIX
- 45. 1a LIST OF AMICI CURIAE Kenneth B. Mehlman, Chairman, Republican National Committee, 2005-2007 Daniel J. Acciavatti, Member of the Michigan House of Representatives, 32nd District, 2003-2008 Abe Adams, Deputy Digital Director, Romney-Ryan 2012 Tim Adams, Undersecretary of the Treasury for In- ternational Affairs, 2005-2007 Sarah Anderson, Communications and Research Di- rector for the Michigan Republican Party, 2005-2007 Todd Anderson, Chief of Staff to the Republican Speaker of the Michigan House of Representatives, 2001-2004 Gregory T. Angelo, Executive Director, Log Cabin Republicans Cliff S. Asness, Businessman, Philanthropist, and Au- thor David D. Aufhauser, General Counsel, Department of the Treasury, 2001-2003 Joshua Baca, National Coalitions Director, Romney for President 2012, and Former Congressional Staff Mem- ber to Representative Heather Wilson Doug Badger, Executive Director, Oregon Bush- Cheney 2004, and Chief of Staff, U.S. Congresswoman Jennifer Dunn John Bailey, Policy Director, Bush-Cheney 2004, and Special Assistant to the President for Domestic Policy, 2007-2009
- 46. 2a Charlie Baker, Governor of Massachusetts, 2015- Present Melissa Hall Davis Balough, Energy and Environ- ment Policy Director, Romney for President, 2007-2008 Lyn Bankes, Member of the Michigan House of Repre- sentatives, 19th District, 1985-1998 William E. “Bill” Baroni, Jr., New Jersey State As- semblyman, 2004-2008, New Jersey State Senator, 2008-2010, and Of Counsel at Hill Wallack LLP Michael James Barton, Deputy Director of the Middle East Policy Office, Pentagon, 2006-2009, and Homeland Security Council Member, White House, 2003-2006 Charles Bass, Member of Congress, 1995-2007 and 2011-2013 Glynda A. Becker, Associate Director, White House Office of Political Affairs, 2003-2006, and Environmen- tal and Energy Specialist, U.S. Department of Com- merce, 2002-2003 Rich Beeson, Political Director, Romney for President, 2011-2012, Political Director, Republican National Committee, 2007-2008 John B. Bellinger III, Legal Adviser to the Depart- ment of State, 2005-2009 Troy Benavidez, Presidential Advisory Council on HIV AIDs, 2006-2009 Crystal Benton, Former Press Secretary to Senator John McCain and Deputy Communications Director for John McCain for President, 2008 Juliana Bergeron, New Hampshire Republican Na- tional Committeewoman, 2012-Present
- 47. 3a Elliot S. Berke, Counsel, Office of the Speaker, 2006, General Counsel, Office of the Majority Leader, 2004- 2006, and Special Counsel, U.S. Department of Housing & Urban Development, 2002-2004 Jeff Berkowitz, Research Director, Republican Na- tional Committee, 2009-2010, and White House Associ- ate Director of Scheduling-Research, 2005-2006 Jon Berrier, Communications and Political Affairs Co- ordinator, The White House, Office of the Vice Presi- dent, 2005-2006 Michael Beylkin, Attorney at Law, Colorado Katie Biber, General Counsel, Romney for President, 2007-2008 and 2011-2012 David E. Black, National Finance Team, Huntsman for President, 2011-2012, and Press Advance Lead, Rom- ney for President, 2012 Dan G. Blair, Deputy Director, U.S. Office of Person- nel Management, 2002-2006 (Acting Director, 2005), and Commissioner, Postal Regulatory Commission, 2006-2011 (Chair, 2006-2009) Dan Blum, Deputy Campaign Manager, Scott Walker for Governor, 2011-2012, and Senior Research Analyst, Republican National Committee, 2007-2009 Mary Bono, Member of Congress, 1998-2013 Tucker Bounds, National Spokesman, John McCain for President, 2008 Pat Brady, Chairman, Illinois GOP, 2009-2013 John M. Bridgeland, Director, White House Domestic Policy Council, 2001-2002, and Assistant to the Presi- dent and Director, U.S.A. Freedom Corps, 2002-2004
- 48. 4a Eric Brinker, Businessman and Philanthropist Nancy Brinker, Ambassador to Hungary, 2001-2003, and Chief of Protocol for the United States, 2007-2008 Neil R. Brown, Senior Professional Staff Member, Re- publican Staff, United States Senate Foreign Relations Committee, 2005-2013 Bill Brownson, National Board Chair, Log Cabin Re- publicans, 2003-2006 Brooks Brunson, Special Assistant to the Chief of Staff, House Republican Conference, 2003-2005 Sean Cairncross, Deputy Executive Director and Gen- eral Counsel, National Republican Senatorial Commit- tee, 2009-2013, and Chief Counsel, Republican National Committee, 2007-2009 Sally Canfield, Policy Director, Romney for President, 2006-2008, and Deputy Chief of Staff, Senator Marco Rubio, 2011-2015 Alex Castellanos, Republican Media Advisor Dan Centinello, Deputy National Political Director, Mitt Romney for President, 2011-2012, and Statewide Field Director, Chris Christie for Governor, 2009 David C. Chavern, Business Association Executive Mary Cheney, Director of Vice Presidential Opera- tions, Bush-Cheney 2004, 2003-2004 Thomas J. Christensen, Deputy Assistant Secretary of State for East Asian and Pacific Affairs, 2006-2008 Jim Cicconi, Assistant to the President and Deputy to the Chief of Staff, 1989-1990
- 49. 5a Harry W. Clark, Counselor to Ambassador Robert B. Zoellick and the Office of the U.S. Trade Representa- tive, 2003-2004, and Senior Adviser to the Albright Stonebridge Group Gus Coldebella, Acting General Counsel, U.S. De- partment of Homeland Security, 2007-2009, and Deputy General Counsel, U.S. Department of Homeland Secu- rity, 2005-2007 Susan M. Collins, U.S. Senator for Maine, 1997- Present Jeff Cook-McCormac, Philanthropic and Political Ad- visor R. Clarke Cooper, U.S. Alternative Representative, United Nations Security Council, 2007-2009 Mike Cox, Attorney General of Michigan, 2003-2011 Sara Craig, Iowa State Director, Romney for Presi- dent, 2011-2012, and Virginia State Manager, Romney for President, 2012 Julie Cram, Deputy Assistant to the President and Di- rector of the White House Office of Public Liaison, 2007-2009 Tom Cross, Illinois State Representative, 1993-2015, and Minority Leader of the Illinois House of Repre- sentatives, 2002-2013 S.E. Cupp, Author and Political Commentator Carlos Curbelo, Member of Congress Kevin Curran, Associate Director of Presidential Per- sonnel, White House, 2006-2009 John C. Danforth, United States Senator, 1976-1995, and U.S. Ambassador to the United Nations, 2004-2005
- 50. 6a Michael P. Davidson, Bush-Cheney 2004, and Non- Profit CEO, 2008-Present Michele Davis, Assistant Secretary for Public Affairs and Director of Policy Planning, Department of the Treasury, 2006-2009 Tyler Deaton, National Committeeman, New Hamp- shire Young Republicans, 2011-Present Vincent DeVito, General Counsel, Massachusetts Re- publican Party, 2007-2013, Chief Legal Counsel, The Baker Committee, 2013-2014, and Former U.S. Assis- tant Secretary for Policy and International Affairs (Acting) Bob Dold, Member of Congress, 2011-2013 and 2015- Present Ben Domenech, Publisher of The Federalist, and Speechwriter for Secretary Tommy Thompson, U.S. Department of Health and Human Services, 2003-2004 Alicia Davis Downs, Associate Political Director, White House, 2001-2003 David Doyle, Chairman, Michigan Republican Party, 1991-1995 James C. Dozier, Republican Political Strategist and Advisor Leon Drolet, Member of Michigan House of Repre- sentatives, 2001-2006 Kenneth M. Duberstein, White House Chief of Staff, 1987-1989, and Assistant to the President, 1981-1984 Christine Dudley, Executive Director, Illinois Repub- lican Party, 1993-1999, Regional Political Director, Re- publican National Committee, 1999-2002, and Political, Public, and Government Affairs Consultant, 2002-2014
- 51. 7a Sean Duffy, Deputy Chief of Staff for Communications, Colorado Governor Bill Owens, 2001-2005 Janet L. Duprey, New York State Assemblywoman, 2007-Present Christian J. Edwards, Special Assistant to the Presi- dent and Director of Press Advance, 2005-2007 Mark J. Ellis, State Chairman, Maine Republican Par- ty, 2005-2006 and 2007-2009 Jamie Ensley, Chairman of the Board, Log Cabin Re- publicans, 2015-Present Rob Epplin, Legislative Director, U.S. Senator Susan Collins, 2008-2012, and U.S. Senator Gordon Smith, 1997-2008 Cary Evans, Senior Field Advisor, Rudy Giuliani for President, 2007-2008, Regional Political Director, Re- publican National Committee, 2005-2007, and Regional Political Director, Bush-Cheney 2004, 2003-2004 Elizabeth Noyer Feld, Public Affairs Specialist, White House Office of Management and Budget, 1984-1986, and Assistant to the Press Secretary for Vice President George H. W. Bush, 1986-1987 Mason Fink, Finance Director, Romney for President, 2012 Kirk Fordham, Republican Congressional Chief of Staff, 1995-2006 Carl Forti, Deputy Campaign Manager and Political Director, Romney for President 2007-2008 Jill Hazelbaker Franks, Communications Director, John McCain for President, 2007-2008
- 52. 8a Edward J. Gaffney, Jr., Esquire, Member of Michigan House of Representatives, 2002-2008 Kathryn E. Gage, Deputy Campaign Manager, Rom- ney for President 2012 Reed Galen, Director of Scheduling and Advance, Bush-Cheney 2004, 2003-2004 Richard Galen, Communications Director, Speaker’s Political Office, 1996-1997 Jenny Gaynor, Deputy Chief of Staff, Republican Na- tional Committee, 2005-2007, and Director of Corre- spondence, Bush-Cheney 2004 William C. T. Gaynor II, Associate Director Office of Business Liaison, Department of Commerce, 2001-2003, and Western Regional Finance Director, Bush-Cheney 2004 Mark Gerson, Chairman, Gerson Lehrman Group and Author of The Neoconservative Vision: From the Cold War to the Culture Wars and In the Classroom: Dis- patches from an Inner-City School that Works Chris Gibson, Member of Congress, 2011-Present Josh Ginsberg, National Field Director, Romney for President, 2007-2008 Rudolph W. Giuliani, Mayor of the City of New York, 1994-2001, United States Attorney, Southern District of New York, 1983-1989, and Associate Attorney Gen- eral of the United States, 1981-1983 James K. Glassman, Undersecretary of State for Pub- lic Diplomacy and Public Affairs, 2008-2009 Chris Gober, Deputy Counsel, Republican National Committee, 2006-2007, and General Counsel, National Republican Senatorial Committee, 2007-2008
- 53. 9a Patricia Godchaux, Member of the Michigan House of Representatives, 40th District, 1997-2002 Gabriel E. Gomez, U.S. Senate Candidate, 2013 John Goodwin, Chief of Staff to Raul Labrador, Mem- ber of Congress, 2011-2013 Adam Gordon, Former Deputy District Attorney, San Diego County District Attorney’s Office, 2009-2014 Jennifer Gratz, Founder, XIV Foundation, and Execu- tive Director, Michigan Civil Rights Initiative Adrian Gray, Director of Strategy, Republican Na- tional Committee, 2005-2007 Richard Grenell, Spokesman, U.S. Ambassadors to the United Nations, 2001-2008 Susan Grimes Gilbert, Member of the Michigan House of Representatives, 1987-1996 Mark Grisanti, New York State Senator, 2011-2014 Joseph A. Grundfest, Commissioner, U.S. Securities and Exchange Commission, 1985-1990 Patrick Guerriero, Mayor of Melrose, Massachusetts, and Member of Massachusetts House of Representa- tives, 1993-2001 Chris Gulugian-Taylor, Director, Gubernatorial Cam- paigns and Statewide Organizations, Targeted Victory, 2011-Present Carlos Gutierrez, Secretary of Commerce, 2005-2009 Stephen Hadley, Assistant to the President and Na- tional Security Advisor, 2005-2009 Brian Haley, Deputy Finance Director, John McCain for President, 2008, and Finance Director, Tim Pawlenty for President, 2012
- 54. 10a Richard L. Hanna, Member of Congress, 2011-Present Jon Henke, New Media Advisor, Senate Republican Leadership Communications Office, 2007 Jerri Ann Henry, Campaign Manager, Young Con- servatives for the Freedom to Marry, 2015 Israel Hernandez, Assistant Secretary of Commerce for International Trade, 2005-2009 David G. Herro, Businessman and Philanthropist Dawson Hodgson, Member, Rhode Island Senate, 2011-2015 Rachel Hoff, Director of Defense Analysis, American Action Forum, 2015, and D.C. National Committee- woman, Young Republicans, 2006-2009 Douglas Holtz-Eakin, Director, Congressional Budget Office, 2003-2005 Dave Honigman, Former Member of the Michigan Senate, and Former Member of the Michigan House of Representatives Margaret Hoover, Advisor to the Deputy Secretary of Homeland Security, 2005-2006 Michael Huffington, Member of Congress, 1993-1995 Abby Huntsman, Political Commentator Jon Huntsman, Governor of Utah, 2005-2009, Deputy Assistant Secretary of Commerce, 1989-1992, U.S. Am- bassador to Singapore, 1992-1993, U.S. Trade Ambas- sador, 2001-2003, and U.S. Ambassador to China, 2009- 2011 Bob Inglis, U.S. Representative, South Carolina, 1993- 1999 and 2005-2011
- 55. 11a Susan Jandernoa, Board Member Appointee, State of Michigan Health Endowment Michael Jandernoa, Board Member, Business Leaders for Michigan David A. Javdan, General Counsel, U.S. Small Busi- ness Administration, 2002-2006 Reuben Jeffery, Undersecretary of State for Econom- ic, Energy, and Agricultural Affairs, 2007-2009 Coddy Johnson, National Field Director, Bush-Cheney 2004, White House Office of Political Affairs, and Re- gional Director Bush-Cheney 2000 Gary Johnson, Governor of New Mexico, 1995-2003, and Libertarian Party Nominee for President, 2012 Nancy L. Johnson, Member of Congress, 1983-2007 Rick Johnson, Former Member of the Michigan House of Representatives, and Former Speaker of the Michi- gan House of Representatives, 2001-2004 Brian Jones, Senior Advisor, Romney for President, 2012, and Communications Director, McCain for Presi- dent, 2008 Brian W. Jones, General Counsel, U.S. Department of Education, 2001-2005 Jennifer Jones, Republican Strategist Elise Jordan, Director for Communications, National Security Council, 2007-2008 Robert Kabel, Special Assistant to the President for Legislative Affairs, 1982-1985 Neel Kashkari, Assistant Secretary of the Treasury, 2008-2009, and Republican Nominee for Governor of California, 2014
- 56. 12a Theodore W. Kassinger, Deputy Secretary of Com- merce, 2004-2005, and General Counsel of the Com- merce Department, 2001-2004 Ron Kaufman, Senior Advisor, Romney for President, 2012, and Assistant to the President for Political Af- fairs and White House Political Director for President George H. W. Bush Jason Kauppi, Press Secretary, Office of the Governor of Massachusetts, 2001 Loren Kaye, Deputy Cabinet Secretary, Governor George Deukmejian, 1986-1991, and Cabinet Secretary and Trade and Commerce Under Secretary, Governor Pete Wilson, 1991-1996 Chrysovalantis Kefalas, Deputy Counsel to Governor Robert L. Ehrlich, Jr., 2004-2007 Mark Steven Kirk, U.S. Senator for Illinois, 2010- Present, and U.S. Representative to Congress for Illi- nois, 10th District, 2001-2010 Jonathan Kislak, Deputy Undersecretary of Agricul- ture for Small Community and Rural Development, 1989-1991 David H. Koch, Philanthropist Jim Kolbe, Member of Congress, 1985-2007 Jeffrey Kupfer, Chief of Staff and Acting Deputy Sec- retary, Department of Energy, 2006-2009 Ed Kutler, Assistant to the Speaker of the House, 1995-1997 Wade Lairsen, Associate Director, White House Office of Intergovernmental Affairs, 2007-2008
- 57. 13a David Langdon, Special Assistant to the Chairman, Republican National Committee, 2004-2007, and Special Assistant to the Governor, Romney for President 2008 James C. Langdon III, Office of the Chief of Staff, Executive Assistant to both Special Assistants to the President for Policy, 2005-2007 Kory A. Langhofer, Associate Counsel, Romney for President, 2012, and Assistant United States Attorney, U.S. Department of Justice, 2009-2011 Steven C. LaTourette, U.S. Representative, 1995- 2013 Frank Lavin, Undersecretary of Commerce for Inter- national Trade, 2005-2007, U.S. Ambassador to Singa- pore, 2001-2005, and Director, White House Office of Political Affairs, 1987-1989 Rick Lazio, Member of Congress, 1993-2001 Rek LeCounte, Young Conservative Leadership Committee, 2014-Present Simone Ledeen, Defense Fellow, 2004-2009 Kathryn Lehman, Chief of Staff, House Republican Conference, 2003-2005 Eli Lehrer, Speechwriter to Senate Majority Leader Bill Frist, 2004-2007 Andrew J.P. Levy, Deputy General Counsel, U.S. De- partment of Homeland Security, 2006-2009 Joseph J. Lhota, Republican Nominee for Mayor, The City of New York, 2013 Mathew L. Lira, Republican Strategist
- 58. 14a Thomas A. Little, Vermont State Representative, 1992-2002 and Chairman of the Vermont House Judici- ary Committee, 1999-2000 Daniel S. Loeb, Investor and Philanthropist Sarah Longwell, Vice-Chair, Log Cabin Republicans, 2011-Present Eduardo J. Lopez-Reyes, National Vice Chairman of the Republican Liberty Caucus, 2011-Present Richard N. Lorenc, Chief Operating Officer, Founda- tion for Economic Education, 2013-Present Alex Lundry, Director of Data Science, Romney for President, 2012 Paul Makarechian, Bush-Cheney 2004, and Business Executive Liz Mair, Online Communications Director and Spokeswoman, Republican National Committee, 2008, and Online Communications Strategist for Carly Fiori- na, Rick Perry, Scott Walker, and Rand Paul Christopher Maloney, Ohio Communications Director and Spokesman, Romney for President, 2012 Adele Malpass, Chairwoman of Manhattan Republican Party Dana Edwards Manatos, Associate Director of Public Liaison, White House, 2005-2007 N. Gregory Mankiw, Chairman, Council of Economic Advisers, 2003-2005 Catherine Martin, Deputy Assistant to the President and Deputy Communications Director for Policy and Planning, 2005-2007
- 59. 15a Kevin Martin, Chairman, Federal Communications Commission, 2005-2009 Meghan McCain, Political Commentator Lauren McCann, Board Member, Young Conserva- tives for the Freedom to Marry, 2015 Stanley A. McChrystal, Four-Star General, United States Army, 1976-2010 David McCormick, Undersecretary of the Treasury for International Affairs, 2007-2009 Brent McGoldrick, Director of Advertising Analytics, Romney for President 2012 Michael McHugh, Legislative Staff, Senator Gordon Smith, 2006-2008, and Political Consultant Mark McKinnon, Former Chief Media Advisor to Pres- ident George W. Bush and Leading Reform Advocate Aaron McLear, Press Secretary to Governor Arnold Schwarzenegger, 2007-2011 Richard D. McLellan, Political Strategist and Policy Advisor T. Vance McMahan, U.S. Ambassador, United Nations Economic and Social Council, 2008-2009 Greg McNeilly, Executive Director, Michigan Repub- lican Party, 2003-2005 Joe Megyesy, Communications Director, Congressman Mike Coffman, 2011-2012, and Press Secretary, Colora- do Senate Republicans, 2006-2009 Bruce P. Mehlman, Assistant Secretary of Commerce, 2001-2003
- 60. 16a J. Frank Mermoud, Special Representative for Com- mercial and Business Affairs, U.S. Department of State, 2002-2009 Dan Meyers, Republican National Committee, 2006 William Milliken, Governor of Michigan, 1969-1983 Zac Moffatt, Digital Director, Romney for President 2012, and Political Education Director, Republican Na- tional Committee, 2007-2008 Keith Molin, Former Director Michigan Department of Labor, 1975-1977, and Former Director Michigan De- partment of Commerce, 1977-1979 Susan Molinari, Member of Congress, 1990-1997 Connie Morella, Member of Congress, 1987-2003, and U.S. Ambassador to the Organization for Economic Co- operation and Development, 2003-2007 James L. Morgan III, Deputy Political Director, Re- publican National Committee, 1988-89, Deputy Political Director, Bush for President, 1987-1988, and Executive Director, Georgia Republican Party, 1984-1986 Andrew Moylan, Executive Director, R Street Insti- tute, 2012-Present Michael E. Murphy, Republican Political Consultant James Murray, Deputy Chief of Staff to Michigan Speaker Rick Johnson, 1990-2005 Beth Myers, Romney for President Campaign Manag- er, 2007-2008 and Senior Advisor, 2011-2012 David Karl Myers, Vice-Chair of the Howard County Republican Party in Maryland, and Alternate Delegate to the Republican National Party, 2012
- 61. 17a Michael Napolitano, White House Office of Political Affairs, 2001-2003 Jennifer A. Nassour, Chair, Conservative Women for a Better Future, 2011-Present, and Chair, Massachu- setts Republican Party, 2009-2011 Ana Navarro, National Hispanic Co-Chair, John McCain for President, 2008 Susan Neely, Special Assistant to the President, 2001- 2002, and Assistant Secretary of Public Affairs, U.S. Department of Homeland Security, 2003-2005 Nicole Neily, Board Member, Alumni for Liberty Jill E. Neunaber, Iowa State Director, Romney for President, 2012 Noam Neusner, Special Assistant to the President for Economic Speechwriting, 2002-2005 Mina Nguyen, Deputy Assistant Secretary, U.S. De- partment of Treasury, 2006-2007 Cristyne L. Nicholas, Communications Director, Mayor Rudolph Giuliani, 1993-1999 Mario Nicolais, Senior Research Analyst, Rudy Giuli- ani for President, 2007-2008, Republican Commissioner, Colorado Reapportionment Commission, 2011, and Spokesman, Coloradans for Freedom, 2012-2014 B.J. Nikkel, Colorado State Representative, 2009-2013, and Majority Whip, 2011-2013 Marco Nunez, Deputy Regional Political Director for the Western Region, Republican National Committee, and Oregon Field Staff, Bush-Cheney 2004
- 62. 18a Robert O’Connor, Staff Director, Committee on Homeland Security, U.S. House of Representatives, 2005-2010 Meghan L. O’Sullivan, Special Assistant to the Presi- dent, 2004-2007, and National Security Advisor for Iraq and Afghanistan, 2005-2007 Richard W. Painter, Associate Counsel to the Presi- dent, 2005-2007 Chuck Perricone, Former Member of the Michigan House of Representatives, and Former Speaker of the Michigan House of Representatives, 61st District Mark J. Perry, Scholar at The American Enterprise Institute, 2009-Present Ruth Ann Petroff, Wyoming State Representative, 2011-Present Nancy Mitchell Pfotenhauer, Regulatory Advisor, Romney for President, 2012, Senior Policy Advisor Na- tional Spokesperson for John McCain for President 2008, and Chief Economist, George H. W. Bush Council on Competitiveness, 1990-1991 Patrick Phillippi, Office of the Chairman, Republican National Committee, 2002-2003 Alex Pisciarino, Research Analyst, Club for Growth, 2013-Present Gregg Pitts, Director, White House Travel Office, 2006-2009 Karyn Polito, Lieutenant Governor of Massachusetts, 2015-Present
- 63. 19a Sarah Pompei, Communications Director, House of Representatives, Majority Whip’s Office, 2011-2012, and Deputy Communications Director, Romney for President, 2012 Marge Byington Potter, Former Chairperson, Kent County Board of Commissioners Paul W. Potter, Chairman, Kent County Veterans Services Committee, and Former Chairman, City of Grand Rapids Planning Commission J. Stanley Pottinger, Assistant U.S. Attorney Gen- eral, Civil Rights Division, 1973-1977 Michael Powell, Chairman, Federal Communications Commission, 2001-2005, Commissioner, Federal Com- munications Commission, 1997-2005 Larry Pressler, U.S. Senator from South Dakota, 1979-1997, and Member of Congress, 1975-1979 Deborah Pryce, Member of Congress, 1993-2009 John Reagan, New Hampshire State Representative, 2006-2011, and New Hampshire State Senator, 2012- Present John Field Reichardt, Republican Activist and Busi- nessman Blain Rethmeier, Special Assistant to the President for Communications, White House, 2006-2007, and Press Secretary, Senate Judiciary Committee, 2005- 2006 Thomas M. Reynolds, Member of Congress, 1999-2009 James Richardson, Spokesman for the Republican Na- tional Committee, and Spokesman for Governors Haley Barbour and Jon Huntsman
- 64. 20a Tom Ridge, Governor of Pennsylvania, 1995-2001, and Secretary of Homeland Security, 2003-2005 Mark A. Robbins, General Counsel, U.S. Office of Per- sonnel Management, 2001-2006 Kelley Robertson, Chief of Staff, Republican National Committee, 2005-2007 Joseph D. Rodota, Cabinet Secretary and Deputy Chief of Staff, Governor Pete Wilson, 1993-1998 Brian Roehrkasse, Director of Public Affairs, Depart- ment of Justice, 2005-2008, and Press Secretary, De- partment of Homeland Security, 2003-2005 Harvey S. Rosen, Member, Council of Economic Ad- visers, 2003-2005, and Chairman, Council of Economic Advisers, 2005 Ileana Ros-Lehtinen, Member of Congress, 1989- Present Richard J. Ross, Massachusetts State Senator, 2010- Present Lee Rudofsky, Deputy General Counsel, Romney for President, 2012 Patrick Ruffini, eCampaign Director, Republican Na- tional Committee, 2005-2007 Patrick Sammon, President, Log Cabin Republicans, 2006-2009 Matthew T. Sanderson, Republican Campaign Attor- ney Andrea Saul, Press Secretary, Romney for President, 2012 Skip Saviano, Member of Illinois House of Representa- tives, 1993-2013
- 65. 21a Teresa R. Sayward, Former New York State Assem- bly Member, 2003-2012 Corry Schiermeyer, Director for Global Communica- tions, National Security Council, 2005-2007 Stephen E. Schmidt, Deputy Assistant to the Presi- dent and Counselor to the Vice President, 2004-2006 Adam Schroadter, New Hampshire State Representa- tive, 2010-Present John J. H. Schwarz, M.D., Member of Congress, 2005- 2007 George Scoville III, Independent Consultant Judith L. Scranton, Member of the Michigan House of Representatives, 66th District, 1997-2002 Joan Secchia, Former Trustee, Aquinas College Peter Secchia, Former U.S. Ambassador to Italy, and Former National Committeeman, Republican National Committee Christopher Shays, Member of Congress, 1987-2009 Torrey Shearer, Advisor, American Unity PAC, 2013- Present Erin Sheley, Former Deputy Director, Federalist So- ciety Faculty Division, 2008-2010 Faryar Shirzad, Deputy Assistant to the President and Deputy National Security Advisor for Internation- al Economic Affairs, 2004-2006 Lindsay Shuba, Member, Young Conservatives for the Freedom to Marry, 2015 Tammy Simmons, New Hampshire State Representa- tive
- 66. 22a Alan K. Simpson, United States Senator, 1979-1997, and Senate Republican Whip, 1985-1995 Ken Spain, Communications Director, National Repub- lican Congressional Committee, 2009-2010 Robert Steel, Undersecretary of the Treasury for Do- mestic Finance, 2006-2008 Christopher Potter Stewart, General Consultant, Dan Innis for Congress, 2013-2015 Sarah Crawford Stewart, Senior Advisor, Huntsman for President, 2011-2012, and New Hampshire Cam- paign Manager, Pawlenty for President, 2010-2011 Matt Stolhandske, Senior Research and Teaching Fel- low, David Rockefeller Center, Harvard University Candace L. Straight, Former Co-Chair of New Jersey Republican Party State Committee, 2003-2004 Jane Swift, Governor of Massachusetts, 2001-2003 Jay Timmons, Executive Director, National Republi- can Senatorial Committee, 2003-2005, and Chief of Staff to the Hon. George Allen, 1991-2003 Richard Tisei, Massachusetts State Senator 1991-2011, and Senate Minority Leader 2007-2011 Michael E. Toner, Chairman and Commissioner, Fed- eral Election Commission, 2002-2007 Frances Fragos Townsend, Homeland Security Advi- sor to the President, 2004-2008 Bryan N. Tramont, Chief of Staff, Federal Communi- cations Commission, 2003-2005, and Senior Legal Advi- sor, Federal Communications Commission, 2000-2003 Jeff Trandahl, Clerk of the U.S. House of Representa- tives, 1998-2005
- 67. 23a Michael Turk, eCampaign Director for Bush-Cheney 2004, 2003-2004 John Ullyot, Communications Director, U.S. Senate Armed Services Committee, 2003-2007 Sally A. Vastola, Executive Director, National Repub- lican Congressional Committee, 2003-2006 Ann M. Veneman, United States Secretary of Agricul- ture, 2001-2005 Nina Verghese, Former Coalitions Director, Governor Huntsman for President, and Deputy Regional Political Director, Republican National Committee, 2007-2008 Jerry Vorva, J.D., Former Michigan State Repre- sentative, 20th District Alexandra Vuksich, Director of Special Projects, Of- fice of the Governor of California, 1991-1998 Mark Wallace, U.S. Ambassador to the United Na- tions, Representative for UN Management and Re- form, 2006-2008 Nicolle Wallace, Assistant to the President and White House Communications Director, 2005-2008 Chris Ward, Former Majority Floor Leader, Michigan House of Representatives Michael Wascom, Deputy Assistant Secretary of Transportation for Governmental Affairs, Department of Transportation, 2004-2005 William F. Weld, Governor of Massachusetts, 1991- 1997, and Assistant U.S. Attorney General, Criminal Division, 1986-1988 Richard Westfall, Solicitor General of Colorado, 1996- 1999
- 68. 24a Meg Whitman, Republican Nominee for Governor of California, 2010 August L. Wolf, Businessman and U.S. Olympian 1984 Paul Wolfowitz, Deputy Secretary of Defense, 2001- 2005, and President of the World Bank Group, 2005- 2007 Julie Myers Wood, Assistant Secretary of Homeland Security for Immigration and Customs Enforcement, 2006-2008 Jay S. Zeidman, Office of Public Liaison, White House 2005-2007 Dan Zwonitzer, Wyoming State Representative, 2005- present