Michigan Marriage Petition

NO.
In the Supreme Court of the United States

APRIL DEBOER, et al.,
v.
RICHARD SNYDER, et al.,
Petitioners,
Respondents.
On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit
PETITION FOR WRIT OF CERTIORARI

KENNETH M. MOGILL
MOGILL, POSNER &
COHEN
27 E. Flint St., 2nd Floor
Lake Orion, MI 48362
(248) 814-9470
DANA M. NESSEL
645 Griswold Street
Suite 4300
Detroit, MI 48226
(313) 556-2300
MARY L. BONAUTO
Gay & Lesbian Advocates
& Defenders
30 Winter Street
Suite 800
Boston, MA 02108
(617) 426-1350
CAROLE M. STANYAR
Counsel of Record
221 N. Main Street
Suite 300
Ann Arbor, MI 48104
(313) 819-3953
[email protected]
ROBERT A. SEDLER
Wayne State University
Law School
471 W. Palmer Street
Detroit, MI 48202
(313) 577-3968
Counsel for Petitioners
Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001
i
QUESTION PRESENTED
Whether a state violates the Fourteenth
Amendment to the U.S. Constitution by denying samesex couples the right to marry.
ii
PARTIES TO THE PROCEEDING
Petitioners are APRIL DEBOER, individually and as
parent and next friend of N.D.-R., R.D.-R., and J.D.-R.,
minors, and JAYNE ROWSE, individually and as
minors.
Respondents are: RICHARD SNYDER, in his official
capacity as Governor of the State of Michigan, and
BILL SCHUETTE, in his official capacity as Michigan
Attorney General.
The only other party to the litigation was the Oakland
County, Michigan, Clerk, initially BILL BULLARD,
JR., and later LISA BROWN, as the result of a local
election while the case was pending in the district
court. Clerk BROWN did not appeal the district court
judgment.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 5
A. Petitioners . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Michigans Marriage Prohibition . . . . . . . 7
C. Procedural History . . . . . . . . . . . . . . . . . . 8
REASONS FOR GRANTING THE WRIT . . . . . . . 12
I.
THE SIXTH CIRCUITS DECISION

CONFLICTS WITH THE DECISIONS OF
THE FOURTH, SEVENTH, NINTH, AND
TENTH CIRCUITS. . . . . . . . . . . . . . . . . . . . 12
A. Federalism and the Democratic Process . . 13
B. The Fundamental Right to Marry . . . . . 14
C. Equal Protection/Standard of Scrutiny . 14
iv
D. Analysis of States Justification for the
Ban . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
II.

THIS COURT . . . . . . . . . . . . . . . . . . . . . . . . 17
A. Federalism and the Democratic Process . . 17
B. The Fundamental Right to Marry . . . . . 18
C. Equal Protection and Rational Basis
Review . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
III.
THE QUESTION PRESENTED IS OF

OVERRIDING PUBLIC IMPORTANCE . . . 22
IV.
PETITIONERS CASE PRESENTS

AN APPROPRIATE VEHICLE FOR
REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
APPENDIX
Appendix A United States Court of Appeals, Sixth
Circuit,
Opinion and Dissent in 14-1341;
14-3057; 14-3464; 14-5291; 14-5297;
14-5818
Issued November 6, 2014 . . App. 1-102
Appendix B United States District Court, Eastern
District of Michigan, Southern Division,
Findings of Fact and Conclusions of
Law in 2:12-CV-10285
Issued March 21, 2014 . . . App. 103-139
v
Appendix C United States District Court, Eastern
Judgment in 2:12-CV-10285
Issued March 21, 2014 . . . App. 140-141
Appendix D United States Court of Appeals, Sixth
Circuit,
Judgment in 14-1341
Issued November 6, 2014 . App. 142-143
vi
TABLE OF AUTHORITIES
CASES
Page
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . . . . . . . 7
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971), appeal dismissed,
409 U.S. 810 (1972) . . . . . . . . . . . . . . . . 10, 11, 12
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014), cert. denied,
135 S.Ct. 316 (2014) . . . . . . . . . . . . . . . . . . passim
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014), cert. denied,
135 S.Ct. 271 (2014) (No. 14-136) . . . . . . . . . . . 12
Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) . . . . . . . . . . . . . . . . . . . . . . 20
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014), cert denied,
Rainey v. Bostic, 135 S.Ct. 308
(2014) . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 16, 23
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . 20
DeBoer v. Snyder,
___ F.3d ___, 2014 WL 5748990
(6th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . passim
DeBoer v. Snyder,
973 F.3d 757 (E.D. Mich. 2014) . . . . . . 1, 9-10, 27
vii
Eisenstadt v. Baird,
405 U.S. 438 (1972) . . . . . . . . . . . . . . . . . . . . . . 20
F.C.C. v. Beach Communications,
508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . 15, 20
Frontiero v. Richardson,
411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . 18
Goodridge v. Dept. of Pub. Health,
798 N.E.2d 941 (Mass. 2003) . . . . . . . . . . . . . . . . 7
Griswold v. Connecticut,
381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . 16
Harmon v. Davis,
800 N.W.2d 986 (Mich. 2011) . . . . . . . . . . . . . . 24
Heller v. Doe,
509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . . 15
Hollingsworth v. Perry,
133 S.Ct. 2652 (2013) . . . . . . . . . . . . . . . . . . . . . 26
In re Martin,
504 N.W.2d 917 (Mich. Ct. App. 1993) . . . . . . . 24
Jiminez v. Weinberger,
417 U.S. 628 (1974) . . . . . . . . . . . . . . . . . . . . . . 20
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014), cert denied,
Herbert v. Kitchen, 135 S.Ct. 265
(2014) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 16
Latta v. Otter,
Nos. 14-35420, 14-35421, 12-17668,
2014 WL 4977682
(9th Cir. Oct. 7, 2014) . . . . . . . . 12, 13, 14, 15, 16
viii
Lawrence v. Texas,
539 U.S. 558 (2003) . . . . . . . . . . . . . . . . 10, 18, 19
Loving v. Virginia,
388 U.S. 1 (1967) . . . . . . . . . . . . . . . 13, 14, 18, 19
Massachusetts Bd. of Retirement v. Murgia,
427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . 19, 20
Massachusetts v. Dept. of Health & Human Services,
682 F.3d 1 (1st Cir. 2012) . . . . . . . . . . . . . . . . . 23
McQuigg v. Bostic,
135 S.Ct. 314 (2014) . . . . . . . . . . . . . . . . . . . . . . 12
Meyer v. Nebraska,
262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . 4, 23
Natl. Pride at Work v. Governor of Mich.,
748 N.W.2d 524 (Mich. 2008) . . . . . . . . . . . . . . 24
Olmstead v. Zimring,
527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . 22
Pharm. Research & Mfrs. of Am. v. Walsh,
538 U.S. 644 (2003) . . . . . . . . . . . . . . . . . . . . . . 22
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . 19
Romer v. Evans,
517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . 10, 21
Schuette v. Coalition to Defend Affirmative Action,
134 S.Ct. 1623 (2014) . . . . . . . . . . . . . . . . . . . . . 17
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) . . . . . . . . . . . . . . . 14
ix
Turner v. Safley,
482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . 16, 17
U.S. Dept. of Agriculture v. Moreno,
413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . . . 20, 21
U.S. v. Windsor,
133 S.Ct. 2675 (2013) . . . . . . . . . . . . . . . . . passim
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . 17
Windsor v. U.S.,
699 F.3d 169 (2d Cir. 2012) . . . . . . . . . . . . . . . . 14
Zablocki v. Redhail,
434 U.S. 374 (1978) . . . . . . . . . . . . . . 4, 14, 17, 18
CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . 1
Mich. Const. 1963, art. 1, 25 . . . . . . . . . . . . . 2, 7, 8
STATUTES
1996 Mich. Pub. Acts 334 . . . . . . . . . . . . . . . . . . . . . 7
28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Mich. Comp. Laws 206.506 . . . . . . . . . . . . . . . . . 24
Mich. Comp. Laws 333.2855 . . . . . . . . . . . . . . . . 24
Mich. Comp. Laws 420.3 . . . . . . . . . . . . . . . . . . . 24
Mich. Comp. Laws 551.1 . . . . . . . . . . . . . . . . . . 2, 7
Mich. Comp. Laws 551.2 . . . . . . . . . . . . . . . . . . . . 2
Mich. Comp. Laws 551.3 . . . . . . . . . . . . . . . . . . . . 3
x
Mich. Comp. Laws 551.4 . . . . . . . . . . . . . . . . . . . . 3
Mich. Comp. Laws 551.201 . . . . . . . . . . . . . . . . . . 2
Mich. Comp. Laws 551.271 . . . . . . . . . . . . . . . . 3, 4
Mich. Comp. Laws 551.272 . . . . . . . . . . . . . . . 4, 26
Mich. Comp. Laws 552.23 . . . . . . . . . . . . . . . . . . 24
Mich. Comp. Laws 600.2922(2)(a) . . . . . . . . . . . . 24
Mich. Comp. Laws 700.2201-700.2205 . . . . . . . . 23
Mich. Comp. Laws 700.2205 . . . . . . . . . . . . . 23, 24
Mich. Comp. Laws 700.3206 . . . . . . . . . . . . . . . . 24
Mich. Comp. Laws 710.24 . . . . . . . . . . . . . . . . . . . 8
Mich. Comp. Laws 772.2(c) . . . . . . . . . . . . . . . . . 24
Mich. Comp. Laws 780.766(4)(h) . . . . . . . . . . . . . 24
COURT RULES
S. Ct. Rule 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
S. Ct. Rule 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
OTHER AUTHORITIES
Congressional Research Service, Same-Sex
Marriage: Legal Issues, RL 31994
(May 6, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Freedom to Marry, Marriage Litigation,
http://www.freedomtomarry.org/litigation (last
visited Nov. 10, 2014) . . . . . . . . . . . . . . . . . . . . 25
1
PETITION FOR WRIT OF CERTIORARI
Petitioners APRIL DEBOER, individually and as
minors, and JAYNE ROWSE, individually and as
minors, respectfully petition this Court for a writ of
certiorari to the United States Court of Appeals for the
Sixth Circuit in this case.
OPINIONS BELOW
The decision of the court of appeals is reproduced in
the appendix to the petition (Pet. App. 1102). It is not
published in the Federal Reporter but is available at
2014 WL 5748990. The district courts conclusions of
law and findings of fact (Pet. App. 103-139) are
reported in DeBoer v. Snyder, 973 F.Supp. 2d 757 (E.D.
Mich. 2014).
JURISDICTION
The court of appeals entered judgment on November 6,
2014 (Pet. App. 142). The Court has jurisdiction to
review this case under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Const. Amend. XIV, 1
No State shall . . . deprive any person of life,
liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws.
2
Mich. Const. 1963, art. 1, 25
To secure and preserve the benefits of marriage
for our society and for future generations of
children, the union of one man and one woman
in marriage shall be the only agreement
recognized as a marriage or similar union for
any purpose.
Mich. Comp. Laws 551.1
Marriage is inherently a unique relationship
between a man and a woman. As a matter of
public policy, this state has a special interest in
encouraging, supporting, and protecting that
unique relationship in order to promote, among
other goals, the stability and welfare of society
and its children. A marriage contracted between
individuals of the same sex is invalid in this
state.
So far as its validity in law is concerned,
marriage is a civil contract between a man and
a woman, to which the consent of parties capable
in law of contracting is essential. Consent alone
is not enough to effectuate a legal marriage on
and after January 1, 1957. Consent shall be
followed by obtaining a license as required by
section 1 of Act No. 128 of the Public Acts of
1887, being section 551.101 of the Michigan
Compiled Laws, or as provided for by section 1 of
Act No. 180 of the Public Acts of 1897, being
section 551.201 of the Michigan Compiled Laws,
and solemnization as authorized by sections 7 to
18 of this chapter.
3
A man shall not marry his mother, sister,
grandmother, daughter, granddaughter,
stepmother, grandfathers wife, sons wife,
grandsons wife, wifes mother, wifes
grandmother, wifes daughter, wifes
granddaughter, brothers daughter, sisters
daughter, fathers sister, mothers sister, or
cousin of the first degree, or another man.
A woman shall not marry her father, brother,
grandfather, son, grandson, stepfather,
grandmothers husband, daughters husband,
granddaughters husband, husbands father,
husbands grandfather, husbands son,
husbands grandson, brothers son, sisters son,
fathers brother, mothers brother, or cousin of
the first degree, or another woman.
(1) Except as otherwise provided in this act, a
marriage contracted between a man and a
woman who are residents of this state and who
were, at the time of the marriage, legally
competent to contract marriage according to the
laws of this state, which marriage is solemnized
in another state within the United States by a
clergyman, magistrate, or other person legally
authorized to solemnize marriages within that
state, is a valid and binding marriage under the
laws of this state to the same effect and extent
4
as if solemnized within this state and according
to its laws.
(2) This section does not apply to a marriage
contracted between individuals of the same sex,
which marriage is invalid in this state under
section 1 of chapter 83 of the revised statutes of
1846, being section 551.1 of the Michigan
Compiled Laws.
This state recognizes marriage as inherently a
unique relationship between a man and a
woman, as prescribed by section 1 of chapter 83
of the revised statutes of 1846, being section
551.1 of the Michigan Compiled Laws, and
therefore a marriage that is not between a man
and a woman is invalid in this state regardless
of whether the marriage is contracted according
to the laws of another jurisdiction.
INTRODUCTION
This case presents the question of whether a state
may constitutionally deny same-sex couples the right
to marry the person of their choice. The right to marry
is a fundamental freedom, Zablocki v. Redhail, 434
U.S. 374, 384 (1978), that encompasses the right to
establish a home, to bring up children, and to enjoy
those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free
persons. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
The Sixth Circuit held that Michigans decision to
prohibit same-sex couples from marrying accords with
the due process and equal protection guarantees of the
Fourteenth Amendment.
5
Petitioners are a same-sex couple who sued on
behalf of themselves and their three young children.
They are barred under Michigan law not only from
marrying each other but also from jointly adopting
their children because Michigan permits only married
persons to adopt children as a couple.
There is no dispute that the question raised here is
of paramount importance. Respondents have advised
counsel that they will file a response in this Court
indicating that they do not oppose a grant of certiorari.
Although prior circuit court rulings found that laws
banning marriage by same-sex couples violate the
Fourteenth Amendment, the Sixth Circuit disagreed.
Gay and lesbian citizens in Michigan, Ohio, Kentucky,
and Tennessee are denied the fundamental freedom
and equal right to marry, and their families are
deprived of the status, dignity, security, and stability
that marriage brings. This Court should grant the
petition and hold that prohibiting same-sex couples
from joining in marriage violates our nations most
cherished and essential guarantees.
STATEMENT OF THE CASE
A. Petitioners
April DeBoer and Jayne Rowse, both nurses,1 are in
a long-term, committed relationship and seek to marry.
They are both state-licensed foster parents and, as the
State stipulated, responsible and caring parents who
are providing a stable and loving home for their
1
DeBoer works as a nurse in a hospital neonatal unit tending to

newborns with medical problems. Rowse works as a nurse in a
hospital emergency (ER) unit. Pet. App. 105.
6
children. Stipulated Facts (No. 12-10285) (ECF 168,
Pg ID 4736); see also DeBoer, Pet. App. 105. DeBoer
and Rowse brought three children into their family:
their daughter, R, who was adopted singly by DeBoer,
and sons, N and J, who were adopted singly by
Rowse. Although they are a family, Michigan law bars
the mothers from adopting jointly. As a result, each
child has only one legally recognized parent.
All three children were born to mothers with serious
challenges, and two of the three children qualified as
special needs. DeBoer, Pet. App. 73-74 (Daughtrey,
J., dissenting). N was born on January 25, 2009, and
his mother subsequently surrendered her legal rights
to him. Petitioners volunteered to care for the boy and
brought him into their home following his birth. In
November 2009, Rowse completed the necessary steps
to adopt N legally. Id. at 73.
[D]espite the uphill climb the baby faced, Rowse
also legally adopted J after DeBoer and Rowse first
served as foster parents and legal guardians for him.
Id. at 73-74. J was born on November 9, 2009,
premature at 25 weeks. At birth, he weighed 1 pound,
9 ounces, and tested positive for marijuana, cocaine,
opiates and methadone. His birth mother abandoned
him immediately after delivery. J remained in the
hospital Neonatal Intensive Care Unit for four months
with multiple health complications, and he was not
expected to live. If he survived, he was not expected to
be able to walk, speak or function on a normal level in
any capacity. His condition required around-the-clock
care from DeBoer and Rowse and other skilled
therapists. Id. at 74.
7
Their third child, R, was born on February 1, 2010,
to a nineteen year-old woman who had received no
prenatal care and who gave birth at her mothers home
before bringing the infant to the hospital where DeBoer
worked. R experienced issues related to her lack of
prenatal care, including delayed gross motor skills. She
needed a physical therapy program to address these
problems. Pet. App. 74.
With DeBoer and Rowses skilled and loving care,
all three children are now thriving.
B. Michigans Marriage Prohibition
For many years prior to 1996, Michigan law defined
eligibility to marry without reference to gender. With
the possibility that other states might allow marriage
between same-sex couples,2 in 1996, the legislature
enacted Mich. Comp. Laws 551.1, which identifies
marriage as inherently a unique relationship between
a man and a woman, and amended Mich. Comp. Laws
551.1-.4 to specify that eligibility to marry is limited
to a man and a woman. 1996 Mich. Pub. Acts 334.
In 2004, after Massachusetts began allowing samesex couples to marry,3 a voter initiated constitutional
amendment passed at the ballot in Michigan. The
Michigan Marriage Amendment [MMA], Mich. Const.
1963, art. 1, 25, which eliminated the possibility of
legislatively repealing the marriage exclusion,
provides:
See, e.g., Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
8
To secure and preserve the benefits of marriage
for our society and for future generations of
children, the union of one man and one woman
in marriage shall be the only agreement
recognized as a marriage or similar union for
any purpose.
The MMA not only denies same-sex couples the
freedom to marry, it precludes recognition of marriages
performed outside the state. It also deprives same-sex
couples and their children of countless rights,
protections, and duties under Michigan and federal
law, from the mundane to the profound. United
States v. Windsor, 133 S.Ct. 2675, 2694 (2013).
C. Procedural History
DeBoer and Rowse initially brought this action as a
challenge to Mich. Comp. Laws. 710.24, which
permits married and single persons to adopt but
precludes unmarried couples from adopting each
others children, so that both could be the childs legal
parents. They later amended their complaint to add a
challenge to the MMA and related statutes on due
process and equal protection grounds.
After the district court denied the States motion to
dismiss and the parties cross-motions for summary
judgment, the case proceeded to trial. Petitioners
offered uncontradicted evidence as to (1) the history
and ongoing legacy of discrimination against gays and
lesbians in the United States and in Michigan, (2) the
history, purposes, and evolution of marriage and
eligibility to marry in the United States, (3) the harms
suffered by the children of same-sex couples as a result
of their parents exclusion from marriage, (4) the
9
demographics of gay and lesbian families in the United
States and in Michigan, and (5) the harms suffered by
children in Michigans foster care system who remain
in foster care solely because same-sex couples are
prohibited from adopting jointly. Petitioners and
Respondents presented expert testimony on the central
issue of the trial whether or not there is a scientific
consensus that children raised by same-sex couples
have comparable outcomes to children raised by
opposite-sex couples.
After a nine-day trial, the district court concluded
that the Michigans exclusion of same-sex couples from
marriage violates equal protection because it is not
rationally related to the advancement of any
conceivable legitimate state interest. Pet. App. 123.4
While finding it unnecessary to reach the due process
claim, the district court noted that the Supreme Court
has repeatedly recognized marriage as a fundamental
right. Pet. App. 124.
In arriving at its decision, the district court
addressed and rejected each of the States asserted
rationales, finding that (1) there is no logical
connection between banning same-sex marriage and
providing children with an optimal environment or
achieving optimal outcomes, Pet. App. 127-131;
(2) any interest in proceeding with caution is
insufficient as it could be raised in any setting, and
the state must have some rationale beyond merely
The district court did not entertain arguments on heightened

scrutiny, instead directing the parties to address a narrow legal
issue: whether the MMA survives rational basis review. Pet. App.
125-126.
10
asserting there is no conclusive evidence to decide an
issue, Pet. App. 131-132; (3) tradition and morality
are not rational bases for the MMA, Pet. App. 132-134;
and (4) principles of federalism cannot justify the MMA
because states authority over marriage is subject to
constitutional limitations. Pet. App. 134-138. The
district court, therefore, enjoined the Respondents from
enforcing the MMA and related statutes. Pet. App. 141.
The Governor and the Attorney General appealed
the district courts order and obtained a stay of the
injunction by the Sixth Circuit pending appeal.
In a 2-1 decision, the Sixth Circuit reversed the
district courts decision. The majority held that
(1) this Courts summary affirmance in Baker
v. Nelson, 409 U.S. 810 (1972), was binding on
the court and no other decisions of this Court
constituted doctrinal developments sufficient to
depart from Baker. Pet. App. 22-28 (discussing
Romer v. Evans, 517 U.S. 620 (1996), Lawrence
v. Texas, 539 U.S. 558 (2003), and United States
v. Windsor, 133 S.Ct. 2675 (2013));
(2) regardless whether courts have the power
to decide whether the Fourteenth Amendment
prohibits a definition of marriage like
Michigans, in this instance, it is better to
allow change through the customary political
process, Pet. App. 67;
(3) the applicable standard of review is
rational basis, Pet. App. 31-32, and
the
responsible procreation and wait-and-see
justifications satisfy that standard, Pet. App. 3138, even though gay couples, no less than
11
straight couples, are capable of raising children
and providing stable families for them, Pet.
App. 33-34; and
(4) while the right to marry is a fundamental
right, the right of same-sex couples to marry is
not encompassed within that right, Pet. App. 4547.
The dissenting member of the panel, Judge Daughtrey,
disagreed in every respect. Pet. App. 68-102. For
example, the judge would have found that, in light of
subsequent doctrinal developments, Baker is no bar to
striking down the challenged provisions as violative of
the due process and equal protection clauses. Pet. App.
83-90. As to the central issue at trial, she also noted,
inter alia, that the testimony clearly refuted the
proposition that, all things being equal, same-sex
couples are less able to provide for the welfare and
development of children. Indeed, marriage, whether
between same-sex or opposite-sex partners, increases
stability within the family unit, Pet. App. 82. As to
the child outcome rationales, the dissenting judge also
found that Michigan law allows heterosexual couples
to marry even if the couple does not wish to have
children, even if the couple does not have sufficient
resources or education to care for children, even if the
parents are pedophiles or child abusers, and even if the
parents are drug addicts. Pet. App. 82.
12
REASONS FOR GRANTING THE WRIT
I.

THE FOURTH, SEVENTH, NINTH, AND
TENTH CIRCUITS.
The Sixth Circuits decision upholding Michigans

ban has now created a conflict among the federal courts
of appeals warranting certiorari review under this
Courts Rule 10(a).
Prior to the Sixth Circuits decision, every circuit to
pass on this question concluded that the Constitution
cannot tolerate laws that bar same-sex couples from
marrying. Their rationales varied, but the outcomes
were uniform. Latta v. Otter, Nos. 14-35420, 14-35421,
12-17668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014);
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert.
denied, 135 S.Ct. 316 (2014); Bostic v. Schaefer, 760
F.3d 352 (4th Cir. 2014), cert. denied, 135 S.Ct. 308,
(2014) and sub nom. McQuigg v. Bostic, 135 S.Ct. 314
(2014); Kitchen v. Herbert, 755 F.3d 1193, 1223 (10th
Cir. 2014), cert. denied, Herbert v. Kitchen, 135 S.Ct.
265 (2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir.
2014), cert. denied, 135 S.Ct. 271 (2014).
The Sixth Circuits opposite conclusion disputes the
rationales for decision adopted by its sister circuits.5
The Sixth Circuits conclusion that Petitioners challenge is

precluded by Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
appeal dismissed, 409 U.S. 810 (1972), conflicts with the
conclusions of all four other circuits on this point. See, e.g.,
Kitchen, 755 F3d at 1204-1208; Bostic, 760 F.3d at 373-374; Latta,
2014 WL 4977682, at *3; Baskin , 766 F.3d at 660. Baker is, of
13
A. Federalism and the Democratic Process.
In conflict with its sister circuits, the Sixth Circuit
concluded that it is constitutionally permissible in this
instance for the judicial branch to abdicate to the
political process the duty to protect constitutional
rights. The Sixth Circuit suggested it was
presumptuous for courts to decide what fundamental
rights are enshrined within the Constitution, as it is
preferable for the electorate to come to such decisions
on its own. Pet. App. 60-61. In contrast, the Tenth
Circuit in Kitchen refused to uphold a state ban on
marriage by same-sex couples simply because the state
preferred changes to come through the political
process. While the State favored the political process
over judicial resolution in part to reduc[e] the
potential for civic strife, the Tenth Circuit was
cognizant of its role to enforce constitutional
guarantees: public opposition cannot provide cover for
violation of fundamental rights. 755 F.3d at 1227. In
Bostic, 760 F.3d at 379-80, the Fourth Circuit found
that Windsor does not teach us that federalism
principles can justify depriving individuals of their
constitutional rights; it reiterates [the admonition in
Loving v. Virginia, 388 U.S. 1 (1967),] that the states
must exercise their authority without trampling
constitutional guarantees. Virginias federalism-based
interest in defining marriage therefore cannot justify
its encroachment on the fundamental right to marry.
See also Latta, 2014 WL 4977682, at *9 (a primary
purpose of the Constitution is to protect minorities
from oppression by majorities). The Seventh Circuit
course, no bar to this Courts consideration of the issues presented
in this case.
14
found that [m]inorities trampled on by the democratic
process have recourse to the courts; the recourse is
called constitutional law. Baskin, 766 F.3d at 671.
B. The Fundamental Right to Marry.
The Sixth Circuit found that this Courts precedents
do not recognize a fundamental right to same-sex
marriage in part because this Court could not have
envisioned a marriage between two persons of the same
sex when it decided Loving or Zablocki, and nothing
about marriage for same-sex couples is deeply rooted
in this nations history and tradition. Pet. App. 45-46.
The Fourth and Tenth Circuits held that the bans
violate the fundamental right to marry. See, e.g.,
Bostic, 760 F.3d at 375-77. The court reasoned in
Kitchen, 755 F.3d at 1208-18, that in describing the
liberty interest at stake, it is impermissible to focus on
the identity or class-membership of the individual
exercising the right. See also discussion infra at Part
II. Thus, [c]onsistent with our constitutional tradition
of recognizing the liberty of those previously excluded,
[same-sex couples] possess a fundamental right to
marry and to have their marriages recognized. 755
F.3d at 1218.
C. Equal Protection/Standard of Scrutiny.
The Sixth Circuits rejection of heightened scrutiny
based on the quasi-suspect classification of sexual
orientation conflicts with the Second and Ninth
Circuits holdings as to this issue. See Windsor v.
United States, 699 F.3d 169, 181-185 (2d Cir. 2012);
Latta, 2014 WL 497682, at **3-11, relying upon
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d
471, 479-484 (9th Cir. 2014)(sexual orientation
15
discrimination); see also Latta, 2014 WL 497682, at **
14-23 (Berzon, J., concurring)(gender discrimination).
Even if rational basis review is the applicable
standard, however, the Sixth Circuits application of
this standard conflicts with that of the other circuits.
The Sixth Circuit applied highly deferential rational
basis review as though this were a simple economic
line-drawing case, quoting F.C.C. v. Beach
Communications, 508 U.S. 307, 312-315 (1993), and
Heller v. Doe, 509 U.S. 312 (1993), and found that the
ban in this case withstands review. Pet. App. 31-39.
The sister circuits that reached rational basis review
rejected this analysis or relied on other of this Courts
rational basis precedents. See discussion infra at Part
II. The Seventh Circuit, eschewing a rigid tier-based
formula, found that the states had given the court no
reason to think that they have a reasonable basis for
forbidding same-sex marriage, Baskin, 766 F.3d at 654
(citing Beach, 508 U.S. at 313 (more than a reasonable
basis is required where the challenged discrimination
is along suspect lines)).
D. Analysis of States Justification for the
Ban.
Unlike other circuits, the Sixth Circuit accepted the
States rationales, but avoided relying on Michigans
primary trial justification optimal child outcomes.
Instead, the Sixth Circuit relied on the States claimed
interest in steering heterosexual procreation into
marriage which, the majority claimed, solves the
problem of accidental pregnancies, which can only
affect opposite-sex couples. Pet. App. 32-35. The Sixth
Circuit did not provide any explanation of how the
exclusion of same-sex couples from marriage furthers
16
this rationale. In contrast, the Seventh Circuit found
this same argument so full of holes that it cannot be
taken seriously. Baskin, 766 F.3d at 656. It further
explained, [t]o the extent that children are better off
in families in which the parents are married, they are
better off whether they are raised by their biological
parents or by adoptive parents. Id. Other circuits
echo this point, finding that marriage brings stability
to all families with children. See Bostic, 760 F.3d at 383
(the ban actually harm[s] the children of same-sex
couples by stigmatizing their families and robbing
them of the stability, economic security, and
togetherness that marriage fosters); Kitchen, 755 F.3d
at 1215 (These laws deny to the children of same-sex
couples the recognition essential to stability,
predictability, and dignity.).
As to positing procreation as the states essential
purpose in licensing marriages, the Ninth Circuit
observed that this position contradicts existing
precedent, citing Turner v. Safley, 482 U.S. 78 (1987),
and Griswold v. Connecticut, 381 U.S. 479 (1965), and
found it irrational that states permit marriage by many
opposite-sex couples who will not reproduce - the sterile
and elderly - but not by same-sex couples who already
have children or who are in the process of having or
adopting children. See Latta, 2014 WL 4977682, at *7.
Similarly, the Tenth Circuit explained that the
challenged provisions of the Utah law do not
distinguish based upon procreative lines at all where
[t]he elderly, those medically unable to conceive, and
those who exercise their fundamental right not to have
biological children may all marry. Kitchen, 755 F.3d at
1219. The Seventh Circuit also noted that marriage by
same-sex couples can actually alleviate the problem of
17
accidental birth, since same-sex couples can adopt
children and are five times as likely to be raising an
adopted child as heterosexual couples in Indiana and
two and one-half times as likely as in Wisconsin.
Baskin, 766 F.3d at 663.
II.

THIS COURT.
A. Federalism and the Democratic Process.
The Sixth Circuit, finding the democratic process as

the preferable means for resolving same-sex couples
exclusion from marriage, suggested that marriage bans
will end once the electorate has been convinced and
hearts and minds have changed. Pet. App. 35-36, 5556, 66-67. Yet the judiciarys role in our constitutional
scheme requires it to decide whether laws exceed
constitutional bounds. See, e.g., W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 638 (1943)
(fundamental rights are not subject to popular vote:
they depend on the outcome of no election). Marriage
laws are obviously not exempted from judicial review.
See, e.g., Turner v. Safley, supra, 482 U.S. at 99;
Zablocki v. Redhail, supra, 434 U.S. at 390. Likewise,
as to voter-enacted laws, this Courts decision in
Schuette v. Coalition to Defend Affirmative Action, 134
S.Ct. 1623, 1637 (2014), itself emphasizes that the
Constitution requires redress by the courts when hurt
or injury is inflicted on a minority by the command of
laws or other state action. Id. (plurality opinion of
Kennedy, J.).
Asking Petitioners to wait and see, as the Sixth
Circuit does, is the kind of go slow approach this
18
Court has previously rejected.
In Frontiero v.
Richardson, 411 U.S. 677 (1973), the Court decided the
standard of review applicable to sex discrimination
claims, despite arguments that the Court should stay
its hand and await passage of the Equal Rights
Amendment. Id. at 692 (Powell, J., concurring in the
judgment). Likewise in Loving, this Court decided the
core constitutional issues at hand rather than wait for
further studies about the claimed perils (especially to
the countrys children) of blending the races. Brief and
Appendix on Behalf of Appellee, Loving v. Virginia, 388
U.S. 1 (1967) (No. 395), 1967 WL 113931 (U.S.S.Ct.
1967).
B. The Fundamental Right to Marry.
The Sixth Circuit found the freedom to marry
inapplicable to same-sex couples. Pet. App. 45-47.
Prior decisions of this Court establish marriage as the
most important relation in life and of fundamental
importance for all individuals, Zablocki, 434 U.S. at
384, but the Sixth Circuit found the old definition to
be []tethered to biology. Pet. App. 48. This
reductionist view of the liberties encompassed in
marriage contradicts this Courts view, expressed just
over ten years ago, that gay and lesbian people may
seek autonomy for the same purposes as
heterosexuals do, including with respect to personal
decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and
education. Lawrence, 539 U.S. at 574.
The Sixth Circuit also asserted skepticism about
whether marriage is constitutionally protected at all,
noting that the right to marry in general, and the
right to gay marriage in particular is not explicitly
19
protected in the U.S. Constitution. Pet. App. 46.
However, the original meaning methodology of
defin[ing] rights at the most specific level, that were
protected when the Fourteenth Amendment was
ratified, is incompatible with the promise of the
Constitution that there is a realm of personal liberty
which the government may not enter. Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848
(1992); id. (Marriage is mentioned nowhere in the Bill
of Rights and interracial marriage was illegal in most
States in the 19th century, but the Court was no doubt
correct in finding it to be an aspect of liberty protected
against state interference by the substantive
component of the Due Process Clause in [Loving]). Our
Constitution protects liberties whose manifestations
were not anticipated in the eighteenth century.
Lawrence, 539 U.S. at 578-79 ([T]hose who drew and
ratified the Due Process Clauses of the Fifth
Amendment or the Fourteenth Amendment ... knew
times can blind us to certain truths and later
generations can see that laws once thought necessary
and proper in fact serve only to oppress.).
C. Equal Protection and Rational Basis
Review.
The Sixth Circuit found that, under rational basis
review, legislative choices are presumptively valid and
that mere imperfect line drawing does not violate equal
protection. Citing Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307 (1976), the court concluded that
if the State can articulate any benevolent purpose in
the mix, a law will survive rational basis review. In
addition to omitting the rational relationship prong of
rational basis review, the Sixths Circuits application
20
of Murgia in this context conflicts with the more apt
decisions of this Court striking down laws that are
invidiously under-inclusive; laws riddled with
exceptions, Eisenstadt v. Baird, 405 U.S. 438, 449
(1972) (contraceptives to married, but not unmarried
persons); laws that suffer from misfit classifications
that identify a purported State interest but which
reach only a segment of the population affected by the
interest, Jiminez v. Weinberger, 417 U.S. 628, 637
(1974) (Social Security to some illegitimate children,
not others); and laws finding that the States
justification ma[kes] no sense in light of how [the
government] treated other similarly situated groups.
Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356
(2001) (discussing City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432 (1985)). See also U.S. Dept. of
Agriculture v. Moreno, 413 U.S. 528, 534-35 (1973)
(denying food stamps only to hippies).
The Sixth Circuits decision is also incompatible
with this Courts admonition in F.C.C. v. Beach
Communications, 508 U.S. 307, 312-15 (1993), that the
presumption in favor of legislative choices applies only
in the absence of some reason to infer antipathy. Id.
at 314 (emphasis added). The undisputed record of this
case makes clear, however, that there is ample reason
to infer antipathy against gay and lesbian people in
Michigan and across this country. See Chauncey
Report (No. 12-10285) (ECF 169-1, Pg ID 4744-4789).
Moreover, there is specific reason to infer antipathy in
the enactment of the MMA and its parallel statues; as
with the Defense of Marriage Act [DOMA], these
provisions exclude qualified same-sex couples from the
treatment identically situated opposite-sex couples
would receive. See also Windsor, 133 S.Ct. at 2693
21
(discussing DOMA in the context of Moreno, 413 U.S.
at 534-35, and referencing a history of disparate
treatment . . . of a politically unpopular group).
The Sixth Circuits conclusion that only
demonstrable affirmative evidence of voter animus may
invalidate a law is also inconsistent with this Courts
holdings. Windsor looked to the purpose and effectof
DOMA, including its text, the circumstances giving rise
to DOMA, and its singling out of only one class of
married persons, in striking down that law. Windsor,
133 S.Ct. at 2693-2694. This Court inferred the
existence of animus in Romer v. Evans, 517 U.S. 620,
634 (1996), by looking to the history of the enactment,
the fact that gay people were a politically unpopular
group, citing Moreno, and the fact that the referendum
identifie[d] persons by a single trait and then denie[d]
them protection across the board. Id. at 633. The fact
that the initiative inflicted immediate, continuing and
real injuries that outrun and belie any legitimate
justifications that may be claimed for it supported that
inference. Id. at 635. But see Pet. App. 40-44.
Finally, the Sixth Circuits rational basis analysis
conflicts with this Courts precedent because it nowhere
takes into account the significant legal burdens and
detriments imposed by denying marriage to same-sex
couples, as well as the dignity and emotional well-being
of the couples and any children they may have. See,
e.g., Windsor, 133 S.Ct. at 2694 (DOMA serves to
humiliate[] tens of thousands of children now being
raised by same sex couples . . . mak[ing] it even more
difficult for the children to understand the integrity
and closeness of their own family and its concord with
other families in their community and in their daily
22
lives.); see also DeBoer, Pet. App. 68-69 (Daughtrey, J.,
dissenting) ( . . . [T]he majority treats both the issues
and the litigants here as mere abstractions . . .
[i]nstead of recognizing the plaintiffs as persons,
suffering actual harm as a result of being denied the
right to marry. . . .).
III.
THE QUESTION PRESENTED IS OF

OVERRIDING PUBLIC IMPORTANCE.
This case presents an overwhelmingly important

question of national significance that has not been, but
should be, settled by this Court at this time. S. Ct.
Rule 10(c); Pharm. Research & Mfrs. of Am. v. Walsh,
538 U.S. 644, 650 (2003) (granting certiorari because
the questions presented are of national importance);
Olmstead v. Zimring, 527 U.S. 581, 596 (1999) (We
granted certiorari in view of the importance of the
question presented to the States and affected
individuals.). While same-sex couples in
approximately two thirds of the states and the District
of Columbia are now free to marry, same-sex couples in
the remaining states continue to be denied equal
treatment and this fundamental right based solely on
their sexual orientation. Moreover, if certiorari is not
granted, the costs, uncertainties, and alleged harm
and injuries likely would continue for a time measured
in years before the issue is resolved. Windsor, 133
S.Ct. at 2688.
Review by the Court is necessary at this time
because of the persistent harm marriage bans cause
the Petitioners and many gay and lesbian Americans
23
and their children across the nation.6 The bans
implicate Petitioners and all other similarly situated
persons liberty and dignity and interfere with their
freedom to establish a home, to bring up children,
and to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of
happiness by free persons. Meyer, 262 U.S. at 399.
Moreover, each day the bans remain in place, these
couples are deprived of myriad rights and benefits,
including survivors social security, spouse-based
medical care, and retirement and tax benefits the
main components of the social safety net for vast
numbers of Americans. Massachusetts v. U.S. Dept. of
Health & Human Services, 682 F.3d 1, 11 (1st Cir.
2012).7
6
There are tens of thousands of other same-sex couple families

across the country. Windsor, 133 S.Ct. at 2694. In Michigan alone,
there are approximately 14,598 same-sex couples living together.
Approximately 2,650 such couples are raising 5,300 children. Pet.
App. 113. Nationwide, more than 8 million adults identify
themselves as gay or lesbian, and more than 125,000 same-sex
couples are raising nearly 220,000 children. See Brief of Amicus
Curiae Gary J. Gates in Support of Plaintiffs-Appellees and
Intervenors, Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (Nos.
14-1167, 14-1169, 14-1173), 2014 WL 1511207, at *5; see also
Baskin, 766 F.3d at 663. In addition, there are 400,000 children
languishing in foster care in the United States, with many
competent and caring same-sex couples willing to adopt if
permitted to do so jointly. Id.
Tangible protections and responsibilities denied to gay and

lesbian couples under Michigan law include, but are not limited to,
intestacy rights permitting a surviving spouse to inherit
automatically from the deceased spouses estate if there are no
parents or issue, Mich. Comp. Laws 700.2201-700.2205;
authorizing a surviving spouse to an allowance or to occupy the
24
In addition, the bans deny children in same-sex
couple families the dignity, status, stability, and
security enjoyed by the children of married opposite-sex
couple parents, and they exact a harsh practical toll by
depriving them of multiple substantial material
benefits. The trial record in this case demonstrated
that the bans are harming children legally,
economically, socially and psychologically.
The
children are excluded from many benefits associated
with having a second legal parent and may suffer
unnecessary fear, anxiety, and insecurity related to
possible separation from the second parent in the event
of their parents separation or upon the death of the
biological or adoptive legal parent. See Brodzinsky,
(No. 12-10285) (ECF 143, Pg ID 3252-55). The trial
record also demonstrated that the second-parent
homestead while the estate is being settled, Mich. Comp. Laws
700.2205; authorizing a surviving spouse to file a wrongful death
lawsuit when a spouse is killed, Mich. Comp. Laws
600.2922(2)(a); receiving workers compensation death benefits
and retirement benefits when a working spouse is killed or retires,
Mich. Comp. Laws 420.3; access to dissolution laws regulating
separation and divorce, including child custody, visitation, and
support, Mich. Comp. Laws 552.23, 772.2(c), Harmon v. Davis,
800 N.W.2d 986 (Mich. 2011); assuming decisionmaking authority
for the spouses health decisions when the spouse cannot, including
regarding life-sustaining procedures and organ donation, In re
Martin, 504 N.W.2d 917 (Mich. Ct. App.1993); consenting to a postmortem examination, Mich. Comp. Laws 333.2855; making
burial arrangements for a deceased spouse, Mich. Comp. Laws
700.3206; receiving a spouses veterans benefits, Mich. Comp.
Laws 206.506; receiving crime victims recovery benefits for a
spouse who is a crime victim, Mich. Comp. Laws 780.766(4)(h);
and being treated as a family for purposes of workplace benefits.
See, e.g., Natl Pride at Work v. Governor of Mich., 748 N.W.2d 524
(Mich. 2008); id. at 98-99, n. 44-49 (Kelly, J., dissenting).
25
adoption and marriage bans in tandem harm children
further by deterring competent and caring same-sex
couple parents from adopting hard-to-place children, as
a couple, from the States burgeoning foster care
system. Id. at 3257-62.
This Court should also grant certiorari because the
issue is highly unlikely to be resolved without this
Courts intervention, and deferring consideration of
this issue will not result in further development of
lower court case law that will assist the Court in its
consideration. Rather, considering the issue now would
substantially promote judicial economy, as there are
currently twenty-six cases pending in lower federal
courts presenting issues that would be resolved or
substantially advanced by the Court in this case. See
Freedom to Marry, Marriage Litigation, http://www.
freedomtomarry.org/litigation (last visited November
10, 2014).
IV.
PETITIONERS CASE PRESENTS AN

APPROPRIATE VEHICLE FOR REVIEW.
Because Michigans constitutional and statutory

bans are both broad and representative of those in
many other states,8 this Courts review would settle the
central question that remains across the country. The
laws challenged here deny to same-sex couples
marriage or any similar union for any purpose. The
MMA and parallel statutes extend not only to
marriages within the state but also to the recognition
of marriages contracted . . . [in] another jurisdiction.
8
See Alison M. Smith, Cong. Research Serv., RL 31944, Same-Sex

Marriage: Legal Issues (2013) at 30-32 (summarizing state
marriage statutes).
26
Mich. Comp. Laws 551.272. Michigans prohibitions
include both legislatively adopted statutes9 and a
constitutional amendment enacted by state-wide voter
initiative. Moreover, on appeal, the Sixth Circuit
considered marriage or marriage recognition challenges
from three other states as well (Kentucky, Tennessee
and Ohio). Consequently, granting review in
Petitioners case would enable this Court to resolve the
widest array of marriage-related questions in a single
case.
This case has been vigorously litigated throughout
by both the Michigan Governor and Attorney General
in a unified defense to the challenged laws, and they
are the proper parties to speak on the states behalf
and to assert Michigans interests. They bring concrete
adverseness to this lawsuit. There are no jurisdictional
or standing problems such as those involved in
Hollingsworth v. Perry, 133 S.Ct. 2652, 2661-68 (2013).
Finally, this case is the only case currently pending
on appeal in which the district court engaged in fact9
The Sixth Circuit majority appears to state that Petitioners

limited their challenge below to the States constitutional
amendment excluding them from the right to marry and failed to
challenge parallel statutory provisions on either federal or state
constitutional grounds. Pet. App. 45. However, Petitioners have,
in fact, challenged the relevant Michigan statutory provisions.
Pet. App. 104; Brief in Support of Petitioners Motion for Summary
Judgment (No. 12-10285)(ECF 67, Pg ID 1401); Brief on Appeal
(No. 14-1341) (ECF 13, Pg ID 13, 15).
The district courts
judgment also specifically applied to both the Michigan Marriage
Amendment and its implementing statutes. Pet. App. 141.
Moreover, with the state constitutional amendment in place, it
would have been futile to raise a state constitutional challenge to
the statutes.
27
finding to assist its task. Expert testimony presented
in the fields of sociology, psychology, demography,
history, and law addressed the facts underlying the
parties respective claims. Moreover, because this
action was brought originally on behalf of Petitioners
and their three minor children, issues relating uniquely
to the children were examined thoroughly in the
crucible of the trial process. This record may also be of
assistance to this Court.
April DeBoer and Jayne Rowse, working on the
front lines as nurses in the emergency room and
neonatal intensive care unit, saw a void and filled it for
three children who are now their own. Pet. App. 105,
138. (No court record of this proceeding could ever
fully convey the personal sacrifice of these two
plaintiffs. . . .). As the trial below demonstrated, their
story, while extraordinary, is not unique, as tens of
thousands of same-sex couples step forward taking in
hard-to-place children special needs children,
children of color the children left behind. As the
Seventh Circuit articulated so eloquently in Baskin,
766 F.3d at 664, the unintended consequences of
striking down these bans are not dire after all, with the
wonderful confluence of children in need and caring
same-sex couples lining up to give them homes.
28
CONCLUSION
For the foregoing reasons, the petition should be
granted.
Respectfully submitted,
KENNETH M. MOGILL
MOGILL, POSNER &
COHEN
27 E. Flint St., 2nd Floor
Lake Orion, MI 48362
(248) 814-9470
CAROLE M. STANYAR
Counsel of Record
221 N. Main Street
Suite 300
Ann Arbor, MI 48104
(313) 819-3953
[email protected]
DANA M. NESSEL
645 Griswold Street
Suite 4300
Detroit, MI 48226
(313) 556-2300
ROBERT A. SEDLER
Wayne State University
Law School
471 W. Palmer Street
Detroit, MI 48202
(313) 577-3968
MARY L. BONAUTO
Gay & Lesbian Advocates
& Defenders
30 Winter Street
Suite 800
Boston, MA 02108
(617) 426-1350
Counsel for Petitioners
Dated: November 14, 2014
APPENDIX
i
PETITION APPENDIX TABLE OF CONTENTS
Appendix A United States Court of Appeals, Sixth
Circuit,
Opinion and Dissent in 14-1341;
14-3057; 14-3464; 14-5291; 14-5297;
14-5818
Issued November 6, 2014 . . App. 1-102
Appendix B United States District Court, Eastern
Findings of Fact and Conclusions of
Law in 2:12-CV-10285
Issued March 21, 2014 . . . App. 103-139
Appendix C United States District Court, Eastern
Judgment in 2:12-CV-10285
Issued March 21, 2014 . . . App. 140-141
Appendix D United States Court of Appeals, Sixth
Circuit,
Judgment in 14-1341
Issued November 6, 2014 . App. 142-143
App. 1
APPENDIX A
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0275p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 14-1341; 3057; 3464; 5291; 5297; 5818
[Filed November 6, 2014]
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14-1341
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Plaintiffs-Appellees,
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v.
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RICHARD SNYDER, Governor, State of
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Michigan, in his official capacity, et al., )
Defendants-Appellants. )
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14-3057
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JAMES OBERGEFELL, et al.,
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v.
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RICHARD HODGES, Director of the Ohio
Department of Health, in his
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official capacity,
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Defendant-Appellant.
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App. 2
14-3464
BRITTANI HENRY, et al.,
v.
RICHARD HODGES, Director of the Ohio
Department of Health, in his
official capacity,
14-5291
GREGORY BOURKE, et al.,
v.
STEVE BESHEAR, Governor,
Commonwealth of Kentucky, in
his official capacity,
14-5297
VALERIA TANCO, et al.,
v.
WILLIAM EDWARD BILL HASLAM,
Governor, State of Tennessee, in
his official capacity, et al.,
Defendants-Appellants.
14-5818
TIMOTHY LOVE, et al.,
Plaintiffs/Intervenors-Appellees,
v.
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App. 3
STEVE BESHEAR, Governor,
Commonwealth of Kentucky, in
his official capacity,
______________________________________
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14-1341
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit;
No. 2:12-cv-10285Bernard A. Friedman, District
Judge.
14-3057 & 14-3464
Appeals from the United States District Court
for the Southern District of Ohio at Cincinnati;
Nos. 1:13-cv-00501 & 1:14-cv-00129
Timothy S. Black, District Judge.
14-5291 & 14-5818
Appeals from the United States District Court
for the Western District of Kentucky at Louisville;
No. 3:13-cv-00750
John G. Heyburn II, District Judge.
14-5297
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville;
No. 3:13-cv-01159
Aleta Arthur Trauger, District Judge.
Argued: August 6, 2014
Decided and Filed: November 6, 2014
Before: DAUGHTREY, SUTTON and COOK, Circuit
Judges.
App. 4
_________________
COUNSEL
ARGUED: Aaron D. Lindstrom, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellant in 14-1341. Carole M. Stanyar,
Ann Arbor, Michigan, for Appellees in 14-1341. Eric E.
Murphy, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellant in 14-3057
and 14-3464. Alphonse A. Gerhardstein,
GERHARDSTEIN & BRANCH CO. LPA, Cincinnati,
Ohio, for Appellees in 14-3057 and 14-3464. Leigh
Gross Latherow, VANANTWERP, MONGE, JONES,
EDWARDS & MCCANN, LLP, Ashland, Kentucky, for
Appellant in 14-5291 and 14-5818. Laura E.
Landenwich, CLAY DANIEL WALTON & ADAMS,
PLC, Louisville, Kentucky, for Appellees in 14-5291
and 14-5818. Joseph F. Whalen, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellants in 14-5297. William L.
Harbison, SHERRARD & ROE, PLC, Nashville,
Tennessee, for Appellees in 14-5297. ON BRIEF:
14-1341: Aaron D. Lindstrom, Kristin M. Heyse,
OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Carole
M. Stanyar, Ann Arbor, Michigan, Dana M. Nessel,
Detroit, Michigan, Robert A. Sedler, WAYNE STATE
UNIVERSITY LAW SCHOOL, Detroit, Michigan,
Kenneth M. Mogill, MOGILL, POSNER & COHEN,
Lake Orion, Michigan, for Appellees. Kyle J. Bristow,
BRISTOW LAW, PLLC, Clarkston, Michigan, Alphonse
A. Gerhardstein, GERHARDSTEIN & BRANCH CO.
LPA, Cincinnati, Ohio, David A. Robinson, North
Haven, Connecticut, Deborah J. Dewart, Swansboro,
App. 5
North Carolina, Paul Benjamin Linton, Northbrook,
Illinois, James R. Wierenga, DAVID & WIERENGA,
P.C., Grand Rapids, Michigan, Eric Rassbach, THE
BECKET FUND FOR RELIGIOUS LIBERTY,
Washington, D.C., James J. Walsh, Thomas J.
Rheaume, Jr., BODMAN PLC, Detroit, Michigan,
William J. Olson, WILLIAM J. OLSON, P.C., Vienna,
Virginia, Lawrence J. Joseph, Washington, D.C.,
Thomas M. Fisher, OFFICE OF THE ATTORNEY
GENERAL OF INDIANA, Indianapolis, Indiana, Mary
E. McAlister, LIBERTY COUNSEL, Lynchburg,
Virginia, Mathew D. Staver, Anita L. Staver, LIBERTY
COUNSEL, Orlando, Florida, Anthony R. Picarello, Jr.,
Jeffrey Hunter Moon, Michael F. Moses, U.S.
CONFERENCE OF CATHOLIC BISHOPS,
Washington, D.C., Alexander Dushku, R. Shawn
Gunnarson, KIRTON MCCONKIE, Salt Lake City,
Utah, Erin Elizabeth Mersino, THOMAS MORE LAW
CENTER, Ann Arbor, Michigan, David Boyle, Long
Beach, California, Benjamin G. Shatz, MANATT,
PHELPS & PHILLIPS, LLP, Los Angeles, California,
Elizabeth B. Wydra, CONSTITUTIONAL
ACCOUNTABILITY CENTER, Washington, D.C., Paul
M. Smith, JENNER & BLOCK LLP, Washington, D.C.,
Catherine E. Stetson, HOGAN LOVELLS US LLP,
Washington, D.C., Jason Walta, NATIONAL
EDUCATION ASSOCIATION, Washington, D.C.,
Diana Raimi, JAFFE RAITT HEUER & WEISS, P.C.,
Ann Arbor, Michigan, Rocky C. Tsai, ROPES & GRAY
LLP, San Francisco, California, Alan M. Gershel,
THOMAS M. COOLEY LAW SCHOOL, Auburn Hills,
Michigan, Jerome C. Roth, Nicole S. Phillis, MUNGER,
TOLLES & OLSON LLP, San Francisco, California,
Andrew J. Davis, FOLGER LEVIN LLP, San Francisco,
California, Nicholas M. ODonnell, SULLIVAN &
App. 6
WORCESTER LLP, Boston, Massachusetts, Sean R.
Gallagher, POLSINELLI PC, Denver, Colorado, Mark
C. Fleming, Felicia H. Ellsworth, WILMER CUTLER
PICKERING HALE AND DORR LLP, Boston,
Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra,
WILMER CUTLER PICKERING HALE AND DORR
LLP, Washington, D.C., Alan Schoenfeld, WILMER
CUTLER PICKERING HALE AND DORR LLP, New
York, New York, Diane M. Soubly, STEVENSON
KEPPELMAN ASSOCIATES, Ann Arbor, Michigan,
Ria Tabacco Mar, NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC., New York, New York,
Christy L. Anderson, BRYAN CAVE LLP, Denver,
Colorado, Carmine D. Boccuzzi, Jr., CLEARY
GOTTLIEB STEEN & HAMILTON LLP, New York,
New York, Jonathan B. Miller, OFFICE OF THE
MASSACHUSETTS ATTORNEY GENERAL, Boston,
Massachusetts, Jyotin Hamid, Joseph Rome,
DEBEVOISE & PLIMPTON LLP, New York, New
York, Jeffrey S. Trachtman, KRAMER LEVIN
NAFTALIS & FRANKEL LLP, New York, New York,
Christopher D. Man, CHADBOURNE & PARKE LLP,
Washington, D.C., Chase B. Strangio, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York,
New York, Suzanne B. Goldberg, COLUMBIA LAW
SCHOOL, New York, New York, Marcia D.
Greenberger, Emily J. Martin, NATIONAL WOMENS
LAW CENTER, Washington, D.C., G. David Carter,
Joseph P. Bowser, Hunter Carter, ARENT FOX LLP,
Washington, D.C., Sara Bartel, MORRISON &
FOERSTER LLP, San Francisco, California, Daniel
McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP
STRAUSS HAUER & FELD LLP, San Antonio, Texas,
Jessica M. Weisel, AKIN GUMP STRAUSS HAUER &
FELD LLP, Los Angeles, California, Michael L.
App. 7
Whitlock, BINGHAM MCCUTCHEN LLP,
Washington, D.C., for Amici Curiae. 14-3057: Bridget
E. Coontz, Zachery P. Keller, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. Alphonse A. Gerhardstein, Jennifer L.
Branch, Jacklyn Gonzales Martin, GERHARDSTEIN
& BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks,
NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio,
Chase B. Strangio, James D. Esseks, AMERICAN
New York, Drew Dennis, ACLU OF OHIO, INC.,
Cleveland, Ohio, for Appellees. Byron J. Babione,
ALLIANCE DEFENDING FREEDOM, Scottsdale,
Arizona, Lawrence J. Joseph, Washington, D.C.,
Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS,
LLP, Los Angeles, California, Carmine D. Boccuzzi, Jr.,
CLEARY GOTTLIEB STEEN & HAMILTON LLP,
New York, New York, Gregory R. Nevins, LAMBDA
LEGAL DEFENSE AND EDUCATION FUND, INC.,
Atlanta, Georgia, Susan L. Sommer, LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC., New
York, New York, Camilla B. Taylor, LAMBDA LEGAL
DEFENSE AND EDUCATION FUND, INC., Chicago,
Illinois, Mark C. Fleming, Felicia H. Ellsworth,
LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina
B. Mishra, WILMER CUTLER PICKERING HALE
AND DORR LLP, Washington, D.C., Alan Schoenfeld,
LLP, New York, New York, Paul M. Smith, JENNER
& BLOCK LLP, Washington, D.C., Roberta A. Kaplan,
Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
LLP, New York, New York, Thomas D. Warren,
BAKER & HOSTETLER LLP, Cleveland, Ohio, Jeffrey
App. 8
S. Trachtman, KRAMER LEVIN NAFTALIS &
FRANKEL LLP, New York, New York, Marcia D.
LAW CENTER, Washington, D.C., Shannon P. Minter,
Christopher F. Stoll, NATIONAL CENTER FOR
LESBIAN RIGHTS, Washington, D.C., for Amici
Curiae. 14-3464: Eric E. Murphy, Bridget E. Coontz,
OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Alphonse A.
Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales
Martin, GERHARDSTEIN & BRANCH CO. LPA,
Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS
CO., LPA, Cincinnati, Ohio, Susan L. Sommer, M.
Currey Cook, Keith Hammeran, LAMBDA LEGAL
DEFENSE & EDUCATION FUND, INC., New York,
New York, Paul D. Castillo, LAMBDA LEGAL
DEFENSE & EDUCATION FUND, INC., Dallas,
Texas, for Appellees. Catherine E. Stetson, HOGAN
LOVELLS US LLP, Washington, D.C., Andrew J.
Davis, FOLGER LEVIN LLP, San Francisco,
California, Sean R. Gallagher, POLSINELLI PC,
Denver, Colorado, Nicholas M. ODonnell, SULLIVAN
& WORCESTER LLP, Boston, Massachusetts, Carmine
D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN &
HAMILTON LLP, New York, New York, Ria Tabacco
Mar, NAACP LEGAL DEFENSE & EDUCATIONAL
FUND, INC., New York, New York, Jyotin Hamid,
Joseph Rome, DEBEVOISE & PLIMPTON LLP, New
York, New York, Suzanne B. Goldberg, COLUMBIA
LAW SCHOOL, New York, New York, Daniel McNeel
Lane, Jr., Matthew E. Pepping, AKIN GUMP
FELD LLP, Los Angeles, California, Paul D. Ritter, Jr.,
Christopher J. Weber, Robert G. Schuler, KEGLER,
App. 9
BROWN, HILL & RITTER CO., L.P.A., Columbus,
Ohio, Lawrence J. Joseph, Washington, D.C., Harlan
D. Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin
G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los
Angeles, California, Christopher D. Man,
CHADBOURNE & PARKE LLP, Washington, D.C.,
Mark C. Fleming, Felicia H. Ellsworth, WILMER
CUTLER PICKERING HALE AND DORR LLP,
Boston, Massachusetts, Paul R.Q. Wolfson, Dina B.
Mishra, WILMER CUTLER PICKERING HALE AND
DORR LLP, Washington, D.C., Alan Schoenfeld,
LLP, New York, New York, Rocky C. Tsai, ROPES &
GRAY LLP, San Francisco, California, Joseph R.
Guerra, SIDLEY AUSTIN LLP, Washington, D.C.,
Emma L. Dill, BRYAN CAVE LLP, San Francisco,
California, Jeffrey S. Trachtman, KRAMER LEVIN
NAFTALIS & FRANKEL LLP, New York, New York,
Marcia D. Greenberger, Emily J. Martin, NATIONAL
WOMENS LAW CENTER, Washington, D.C., Sara
Bartel, MORRISON & FOERSTER LLP, San
Francisco, California, G. David Carter, Joseph P.
Bowser, Hunter T. Carter, ARENT FOX LLP,
Washington, D.C., Marjory A. Gentry, ARNOLD &
PORTER LLP, San Francisco, California, Diane M.
Soubly, STEVENSON KEPPELMAN ASSOCIATES,
Ann Arbor, Michigan, Harlan D. Karp, Cleveland,
Ohio, for Amici Curiae. 14-5291: Leigh Gross
Latherow, William H. Jones, Jr., Gregory L. Monge,
VANANTWERP, MONGE, JONES, EDWARDS &
MCCANN, LLP, Ashland, Kentucky, for Appellant.
Laura E. Landenwich, Daniel J. Canon, L. Joe
Dunman, CLAY DANIEL WALTON & ADAMS, PLC,
Louisville, Kentucky, Shannon R. Fauver, Dawn R.
Elliott, FAUVER LAW OFFICE, PLLC, Louisville,
App. 10
Kentucky, for Appellees. David A. Robinson, North
Haven, Connecticut, Deborah J. Dewart, Swansboro,
North Carolina, Stanton L. Cave, LAW OFFICE OF
STAN CAVE, Lexington, Kentucky, Eric Rassbach,
THE BECKET FUND FOR RELIGIOUS LIBERTY,
Washington, D.C., David Boyle, Long Beach,
California, Benjamin G. Shatz, MANATT, PHELPS &
PHILLIPS, LLP, Los Angeles, California, Paul M.
Smith, JENNER & BLOCK LLP, Washington, D.C.,
Washington, D.C., Andrew J. Davis, FOLGER, LEVIN
LLP, San Francisco, California, Rocky C. Tsai, ROPES
& GRAY LLP, San Francisco, California, Jerome C.
Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON
LLP, San Francisco, California, Nicholas M. ODonnell,
SULLIVAN & WORCESTER LLP, Boston,
Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY
GOTTLIEB STEEN & HAMILTON LLP, New York,
New York, Mark C. Fleming, Felicia H. Ellsworth,
LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina
B. Mishra, WILMER CUTLER PICKERING HALE
AND DORR LLP, Washington, D.C., Alan Schoenfeld,
LLP, New York, New York, Sean R. Gallagher,
POLSINELLI PC, Denver, Colorado, Jyotin Hamid,
Joseph Rome, DEBEVOISE & PLIMPTON LLP, New
York, New York, Christy L. Anderson, BRYAN CAVE
LLP, Denver, Colorado, Ria Tabacco Mar, NAACP
LEGAL DEFENSE & EDUCATIONAL FUND, INC.,
New York, New York, Suzanne B. Goldberg,
COLUMBIA LAW SCHOOL, New York, New York,
Joshua A. Block, Chase Strangio, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New
York, Elizabeth B. Wydra, CONSTITUTIONAL
App. 11
ACCOUNTABILITY CENTER, Washington, D.C.,
Marcia D. Greenberger, Emily J. Martin, NATIONAL
WOMENS LAW CENTER, Washington, D.C., Jeffrey
S. Trachtman, KRAMER LEVIN NAFTALIS &
FRANKEL LLP, New York, New York, Christopher D.
Man, CHADBOURNE & PARKE LLP, Washington,
D.C., Sara Bartel, MORRISON & FOERSTER LLP,
San Francisco, California, Daniel McNeel Lane, Jr.,
Matthew E. Pepping, AKIN GUMP STRAUSS HAUER
& FELD LLP, San Antonio, Texas, Jessica M. Weisel,
AKIN GUMP STRAUSS HAUER & FELD LLP, Los
Angeles, California, Diane M. Soubly, STEVENSON
Marjory A. Gentry, ARNOLD & PORTER LLP, San
Francisco, California, Michael L. Whitlock, BINGHAM
MCCUTCHEN LLP, Washington, D.C., G. David
Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX
LLP, Washington, D.C., for Amici Curiae. 14-5297:
Joseph F. Whalen, Martha A. Campbell, Kevin G.
Steiling, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellants.
William L. Harbison, Phillip F. Cramer, J. Scott
Hickman, John L. Farringer, SHERRARD & ROE,
PLC, Nashville, Tennessee, Abby R. Rubenfeld,
RUBENFELD LAW OFFICE, PC, Nashville,
Tennessee, Maureen T. Holland, HOLLAND AND
ASSOCIATES, PLLC, Memphis, Tennessee, Regina M.
Lambert, Knoxville, Tennessee, Shannon P. Minter,
Christopher F. Stoll, Amy Whelan, Asaf Orr,
NATIONAL CENTER FOR LESBIAN RIGHTS, San
Francisco, California, for Appellees. Deborah J.
Dewart, Swansboro, North Carolina, Eric Rassbach,
THE BECKET FUND FOR RELIGIOUS LIBERTY,
Washington, D.C., Byron J. Babione, ALLIANCE
DEFENDING FREEDOM, Scottsdale, Arizona, Paul M.
App. 12
Smith, JENNER & BLOCK LLP, Washington, D.C.,
Washington, D.C., Benjamin G. Shatz, MANATT,
PHELPS & PHILLIPS, LLP, Los Angeles, California,
Elizabeth B. Wydra, CONSTITUTIONAL
ACCOUNTABILITY CENTER, Washington, D.C.,
Andrew J. Davis, FOLGER LEVIN LLP, San Francisco,
California, Rocky C. Tsai, ROPES & GRAY LLP, San
Francisco, California, Jerome C. Roth, Nicole S. Phillis,
MUNGER, TOLLES & OLSON LLP, San Francisco,
California, Nicholas M. ODonnell, SULLIVAN &
WORCESTER LLP, Boston, Massachusetts, Sean R.
Gallagher, POLSINELLI PC, Denver, Colorado,
Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN
& HAMILTON LLP, New York, New York, Mark C.
Fleming, Felicia H. Ellsworth, WILMER CUTLER
PICKERING HALE AND DORR LLP, Boston,
Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra,
LLP, Washington, D.C., Alan Schoenfeld, WILMER
CUTLER PICKERING HALE AND DORR LLP, New
York, New York, Barbara J. Chisholm, P. Casey Pitts,
ALTSHULER BERZON LLP, San Francisco,
California, Christy L. Anderson, BRYAN CAVE LLP,
Denver, Colorado, Jyotin Hamid, Joseph Rome,
DEBEVOISE & PLIMPTON LLP, New York, New
York, Ria Tabacco Mar, NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC., New York, New York,
Joshua A. Block, Chase B. Strangio, AMERICAN
New York, Christopher D. Man, CHADBOURNE &
PARKE LLP, Washington, D.C., Marcia D.
LAW CENTER, Washington, D.C., Jeffrey S.
Trachtman, KRAMER LEVIN NAFTALIS &
App. 13
FRANKEL LLP, New York, New York, G. David
Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX
LLP, Washington, D.C., Sara Bartel, MORRISON &
FOERSTER LLP, San Francisco, California, Daniel
McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP
FELD LLP, Los Angeles, California, Marjory A.
Gentry, ARNOLD & PORTER LLP, San Francisco,
California, Diane M. Soubly, STEVENSON
Michael L. Whitlock, BINGHAM MCCUTCHEN LLP,
Washington, D.C., Suzanne B. Goldberg, COLUMBIA
LAW SCHOOL, New York, New York, for Amici
Curiae. 14-5818: Leigh Gross Latherow, William H.
Jones, Jr., Gregory L. Monge, VANANTWERP,
MONGE, JONES, EDWARDS & MCCANN, LLP,
Ashland, Kentucky, for Appellant. Laura E.
Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY
DANIEL WALTON & ADAMS, PLC, Louisville,
Kentucky, for Appellees. Diane M. Soubly,
STEVENSON KEPPELMAN ASSOCIATES, Ann
Arbor, Michigan, for Amicus Curiae.
SUTTON, J., delivered the opinion of the court, in
which COOK, J., joined. DAUGHTREY, J. (pp. 4364),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
SUTTON, Circuit Judge. This is a case about
changeand how best to handle it under the United
States Constitution. From the vantage point of 2014, it
would now seem, the question is not whether American
App. 14
law will allow gay couples to marry; it is when and how
that will happen. That would not have seemed likely as
recently as a dozen years ago. For better, for worse, or
for more of the same, marriage has long been a social
institution defined by relationships between men and
women. So long defined, the tradition is measured in
millennia, not centuries or decades. So widely shared,
the tradition until recently had been adopted by all
governments and major religions of the world.
But things change, sometimes quickly. Since 2003,
nineteen States and the District of Columbia have
expanded the definition of marriage to include gay
couples, some through state legislation, some through
initiatives of the people, some through state court
decisions, and some through the actions of state
governors and attorneys general who opted not to
appeal adverse court decisions. Nor does this
momentum show any signs of slowing. Twelve of the
nineteen States that now recognize gay marriage did so
in the last couple of years. On top of that, four federal
courts of appeals have compelled several other States
to permit same-sex marriages under the Fourteenth
Amendment.
What remains is a debate about whether to allow
the democratic processes begun in the States to
continue in the four States of the Sixth Circuit or to
end them now by requiring all States in the Circuit to
extend the definition of marriage to encompass gay
couples. Process and structure matter greatly in
American government. Indeed, they may be the most
reliable, liberty-assuring guarantees of our system of
government, requiring us to take seriously the route
the United States Constitution contemplates for
App. 15
making such a fundamental change to such a
fundamental social institution.
Of all the ways to resolve this question, one option
is not available: a poll of the three judges on this panel,
or for that matter all federal judges, about whether gay
marriage is a good idea. Our judicial commissions did
not come with such a sweeping grant of authority, one
that would allow just three of usjust two of us in
truthto make such a vital policy call for the
thirty-two million citizens who live within the four
States of the Sixth Circuit: Kentucky, Michigan, Ohio,
and Tennessee. What we have authority to decide
instead is a legal question: Does the Fourteenth
Amendment to the United States Constitution prohibit
a State from defining marriage as a relationship
between one man and one woman?
Through a mixture of common law decisions,
statutes, and constitutional provisions, each State in
the Sixth Circuit has long adhered to the traditional
definition of marriage. Sixteen gay and lesbian couples
claim that this definition violates their rights under the
Fourteenth Amendment. The circumstances that gave
rise to the challenges vary. Some involve a birth, others
a death. Some involve concerns about property, taxes,
and insurance, others death certificates and rights to
visit a partner or partners child in the hospital. Some
involve a couples effort to obtain a marriage license
within their State, others an effort to achieve
recognition of a marriage solemnized in another State.
All seek dignity and respect, the same dignity and
respect given to marriages between opposite-sex
couples. And all come down to the same question: Who
decides? Is this a matter that the National Constitution
App. 16
commits to resolution by the federal courts or leaves to
the less expedient, but usually reliable, work of the
state democratic processes?
I.
Michigan. One case comes from Michigan, where
state law has defined marriage as a relationship
between a man and a woman since its territorial days.
See An Act Regulating Marriages 1 (1820), in 1 Laws
of the Territory of Michigan 646, 646 (1871). The State
reaffirmed this view in 1996 when it enacted a law that
declared marriage inherently a unique relationship
between a man and a woman. Mich. Comp. Laws
551.1. In 2004, after the Massachusetts Supreme
Judicial Court invalidated the Commonwealths
prohibition on same-sex marriage, Goodridge v. Dept
of Pub. Health, 798 N.E.2d 941 (Mass. 2003), nearly
fifty-nine percent of Michigan voters opted to
constitutionalize the States definition of marriage. To
secure and preserve the benefits of marriage for our
society and for future generations of children, the
amendment says, the union of one man and one
woman in marriage shall be the only agreement
recognized as a marriage or similar union for any
purpose. Mich. Const. art. I, 25.
April DeBoer and Jayne Rowse, a lesbian couple
living in Michigan, challenge the constitutionality of
this definition. Marriage was not their first objective.
DeBoer and Rowse each had adopted children as single
parents, and both wanted to serve as adoptive parents
for the other partners children. Their initial complaint
alleged that Michigans adoption laws violated the
Equal Protection Clause of the Fourteenth
Amendment. The State moved to dismiss the lawsuit
App. 17
for lack of standing, and the district court tentatively
agreed. Rather than dismissing the action, the court
invit[ed the] plaintiffs to seek leave to amend their
complaint to . . . challenge Michigans laws denying
them a marriage license. DeBoer R. 151 at 3. DeBoer
and Rowse accepted the invitation and filed a new
complaint alleging that Michigans marriage laws
violated the due process and equal protection
guarantees of the Fourteenth Amendment.
Both sets of parties moved for summary judgment.
The district court concluded that the dispute raised a
triable issue of fact over whether the rationales for
the Michigan laws furthered a legitimate state
interest, and it held a nine-day trial on the issue.
DeBoer R. 89 at 4, 8. The plaintiffs experts testified
that same-sex couples raise children as well as
opposite-sex couples, and that denying marriage to
same-sex couples creates instabilities for their children
and families. The defendants experts testified that the
evidence regarding the comparative success of children
raised in same-sex households is inconclusive. The
district court sided with the plaintiffs. It rejected all of
the States bases for its marriage laws and concluded
that the laws failed to satisfy rational basis review.
Kentucky. Two cases challenge two aspects of
Kentuckys marriage laws. Early on, Kentucky defined
marriage as the union of a man and a woman. Jones
v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973); see An
Act for Regulating the Solemnization of Marriages 1,
1798 Ky. Acts 49, 4950. In 1998, the Kentucky
legislature codified the common law definition. The
statute says that marriage refers only to the civil
status, condition, or relation of one (1) man and one
App. 18
(1) woman united in law for life, for the discharge to
each other and the community of the duties legally
incumbent upon those whose association is founded on
the distinction of sex. Ky. Rev. Stat. 402.005. In
2004, the Kentucky legislature proposed a
constitutional amendment providing that [o]nly a
marriage between one man and one woman shall be
valid or recognized as a marriage in Kentucky. Ky.
Const. 233A. Seventy-four percent of the voters
approved the amendment.
Two groups of plaintiffs challenge these Kentucky
laws. One group, the fortuitously named Love
plaintiffs, challenges the Commonwealths
marriage-licensing law. Two couples filed that lawsuit:
Timothy Love and Lawrence Ysunza, along with
Maurice Blanchard and Dominique James. Both
couples claim that the Fourteenth Amendment
prohibits Kentucky from denying them marriage
licenses.
The other group, the Bourke plaintiffs, challenges
the ban on recognizing out-of-state same-sex
marriages. Four same-sex couples filed the lawsuit:
Gregory Bourke and Michael DeLeon; Jimmy Meade
and Luther Barlowe; Randell Johnson and Paul
Campion; and Kimberly Franklin and Tamera Boyd.
All four couples were married outside Kentucky, and
they contend that the States recognition ban violates
their due process and equal protection rights. Citing
the hardships imposed on them by the recognition
banloss of tax breaks, exclusion from intestacy laws,
loss of dignitythey seek to enjoin its enforcement.
The district court ruled for the plaintiffs in both
cases. In Love, the court held that the Commonwealth
App. 19
could not justify its definition of marriage on rational
basis grounds. It also thought that classifications based
on sexual orientation should be subjected to
intermediate scrutiny, which the Commonwealth also
failed to satisfy. In Bourke, the court invalidated the
recognition ban on rational basis grounds.
Ohio. Two cases challenge Ohios refusal to
recognize out-of-state same-sex marriages. Ohio also
has long adhered to the traditional definition of
marriage. See An Act Regulating Marriages 1, 1803
Ohio Laws 31, 31; Carmichael v. State, 12 Ohio St. 553,
560 (1861). It reaffirmed this definition in 2004, when
the legislature passed a Defense of Marriage Act, which
says that marriage may only be entered into by one
man and one woman. Ohio Rev. Code 3101.01(A).
Any marriage entered into by persons of the same sex
in any other jurisdiction, it adds, shall be considered
and treated in all respects as having no legal force or
effect. Id. 3101.01(C)(2). Later that same year,
sixty-two percent of Ohio voters approved an
amendment to the Ohio Constitution along the same
lines. As amended, the Ohio Constitution says that
Ohio recognizes only a union between one man and
one woman as a valid marriage. Ohio Const. art. XV,
11.
Two groups of plaintiffs challenge these Ohio laws.
The first group, the Obergefell plaintiffs, focuses on one
application of the law. They argue that Ohios refusal
to recognize their out-of-state marriages on Ohio-issued
death certificates violates due process and equal
protection. Two same-sex couples in long-term,
committed relationships filed the lawsuit: James
Obergefell and John Arthur; and David Michener and
App. 20
William Herbert Ives. All four of them are from Ohio
and were married in other States. When Arthur and
Ives died, the State would not list Obergefell and
Michener as spouses on their death certificates.
Obergefell and Michener sought an injunction to
require the State to list them as spouses on the
certificates. Robert Grunn, a funeral director, joined
the lawsuit, asking the court to protect his right to
recognize same-sex marriages on other death
certificates.
The second group, the Henry plaintiffs, raises a
broader challenge. They argue that Ohios refusal to
recognize out-of-state marriages between same-sex
couples violates the Fourteenth Amendment no matter
what marital benefit is affected. The Henry case
involves four same-sex couples, all married in other
States, who want Ohio to recognize their marriages on
their childrens birth certificates. Three of the couples
(Brittani Henry and Brittni Rogers; Nicole and Pam
Yorksmith; Kelly Noe and Kelly McCracken) gave birth
to children in Ohio and wish to have both of their
names listed on each childs birth certificate rather
than just the childs biological mother. The fourth
couple (Joseph Vitale and Robert Talmas) lives in New
York and adopted a child born in Ohio. They seek to
amend their sons Ohio birth certificate so that it lists
both of them as parents.
The district court granted the plaintiffs relief in
both cases. In Obergefell, the court concluded that the
Fourteenth Amendment protects a fundamental right
to keep existing marital relationships intact, and that
the State failed to justify its law under heightened
scrutiny. The court likewise concluded that
App. 21
classifications based on sexual orientation deserve
heightened scrutiny under equal protection, and that
Ohio failed to justify its refusal to recognize the
couples existing marriages. Even under rational basis
review, the court added, the State came up short. In
Henry, the district court reached many of the same
conclusions and expanded its recognition remedy to
encompass all married same-sex couples and all legal
incidents of marriage under Ohio law.
Tennessee. The Tennessee case is of a piece with the
two Ohio cases and one of the Kentucky cases, as it too
challenges the States same-sex-marriage recognition
ban. Tennessee has always defined marriage in
traditional terms. See An Act Concerning Marriages 3
(1741), in Public Acts of the General Assembly of
North-Carolina and Tennessee 46, 46 (1815). In 1996,
the Tennessee legislature reaffirmed that the
historical institution and legal contract solemnizing the
relationship of one (1) man and one (1) woman shall be
the only legally recognized marital contract in this
state in order to provide the unique and exclusive
rights and privileges to marriage. Tenn. Code Ann.
36-3-113(a). In 2006, the State amended its
constitution to incorporate the existing definition of
marriage. See Tenn. Const. art. XI, 18. Eighty percent
of the voters supported the amendment.
Three same-sex couples, all in committed
relationships, challenge the recognition ban: Valeria
Tanco and Sophy Jesty; Ijpe DeKoe and Thomas
Kostura; and Johno Espejo and Matthew Mansell. All
three couples were legally married in other States. The
district court preliminarily enjoined the law. Relying on
district court decisions within the circuit and
App. 22
elsewhere, the court concluded that the couples likely
would show that Tennessees ban failed to satisfy
rational basis review. The remaining preliminary
injunction factors, the court held, also weighed in the
plaintiffs favor.
All four States appealed the decisions against them.
II.
Does the Due Process Clause or the Equal
Protection Clause of the Fourteenth Amendment
require States to expand the definition of marriage to
include same-sex couples? The Michigan appeal
(DeBoer) presents this threshold question, and so does
one of the Kentucky appeals (Love). Caselaw offers
many ways to think about the issue.
A.
Perspective of an intermediate court. Start with a
recognition of our place in the hierarchy of the federal
courts. As an inferior court (the Constitutions
preferred term, not ours), a federal court of appeals
begins by asking what the Supreme Courts precedents
require on the topic at hand. Just such a precedent
confronts us.
In the early 1970s, a Methodist minister married
Richard Baker and James McConnell in Minnesota.
Afterwards, they sought a marriage license from the
State. When the clerk of the state court denied the
request, the couple filed a lawsuit claiming that the
denial of their request violated the Due Process and
Equal Protection Clauses of the Fourteenth
Amendment. Baker v. Nelson, 191 N.W.2d 185, 186
(Minn. 1971). The Minnesota Supreme Court rejected
App. 23
both claims. As for the due process claim, the state
court reasoned: The institution of marriage as a union
of man and woman, uniquely involving the procreation
and rearing of children within a family, is as old as the
book of Genesis. . . . This historic institution manifestly
is more deeply founded than the asserted contemporary
concept of marriage and societal interests for which
petitioners contend. The due process clause . . . is not
a charter for restructuring it by judicial legislation. Id.
As for the equal protection claim, the court reasoned:
[T]he states classification of persons authorized to
marry does not create an irrational or invidious
discrimination. . . . [T]hat the state does not impose
upon heterosexual married couples a condition that
they have a proved capacity or declared willingness to
procreate . . . [creates only a] theoretically imperfect
[classification] . . . [and] abstract symmetry is not
demanded by the Fourteenth Amendment. Id. at 187.
The Supreme Courts decision four years earlier in
Loving v. Virginia, 388 U.S. 1 (1967), which invalidated
Virginias ban on interracial marriages, did not change
this conclusion. [I]n commonsense and in a
constitutional sense, the state court explained, there
is a clear distinction between a marital restriction
based merely upon race and one based upon the
fundamental difference in sex. Baker, 191 N.W.2d at
187.
Baker and McConnell appealed to the United States
Supreme Court. The Court rejected their challenge,
issuing a one-line order stating that the appeal did not
raise a substantial federal question. Baker v. Nelson,
409 U.S. 810, 810 (1972). This type of summary
decision, it is true, does not bind the Supreme Court in
later cases. But it does confine lower federal courts in
App. 24
later cases. It matters not whether we think the
decision was right in its time, remains right today, or
will be followed by the Court in the future. Only the
Supreme Court may overrule its own precedents, and
we remain bound even by its summary decisions until
such time as the Court informs [us] that [we] are not.
Hicks v. Miranda, 422 U.S. 332, 345 (1975) (internal
quotation marks omitted). The Court has yet to inform
us that we are not, and we have no license to engage in
a guessing game about whether the Court will change
its mind or, more aggressively, to assume authority to
overrule Baker ourselves.
But that was then; this is now. And now, claimants
insist, must account for United States v. Windsor, 133
S. Ct. 2675 (2013), which invalidated the Defense of
Marriage Act of 1996, a law that refused for purposes
of federal statutory benefits to respect gay marriages
authorized by state law. Yet Windsor does not answer
todays question. The decision never mentions Baker,
much less overrules it. And the outcomes of the cases
do not clash. Windsor invalidated a federal law that
refused to respect state laws permitting gay marriage,
while Baker upheld the right of the people of a State to
define marriage as they see it. To respect one decision
does not slight the other. Nor does Windsors reasoning
clash with Baker. Windsor hinges on the Defense of
Marriage Acts unprecedented intrusion into the States
authority over domestic relations. Id. at 269192.
Before the Acts passage in 1996, the federal
government had traditionally relied on state definitions
of marriage instead of purporting to define marriage
itself. Id. at 2691. That premise does not workit runs
the other wayin a case involving a challenge in
federal court to state laws defining marriage. The point
App. 25
of Windsor was to prevent the Federal Government
from divest[ing] gay couples of a dignity and status
of immense import that New Yorks extension of the
definition of marriage gave them, an extension that
without doubt any State could provide. Id. at 2692,
2695. Windsor made explicit that it does not answer
todays question, telling us that the opinion and its
holding are confined to . . . lawful marriages already
protected by some of the States. Id. at 2696. Bringing
the matter to a close, the Court held minutes after
releasing Windsor that procedural obstacles in
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013),
prevented it from considering the validity of state
marriage laws. Saying that the Court declined in
Hollingsworth to overrule Baker openly but decided in
Windsor to overrule it by stealth makes an unflattering
and unfair estimate of the Justices candor.
Even if Windsor did not overrule Baker by name,
the claimants point out, lower courts still may rely on
doctrinal developments in the aftermath of a
summary disposition as a ground for not following the
decision. Hicks, 422 U.S. at 344. And Windsor, they
say, together with Lawrence v. Texas, 539 U.S. 558
(2003), and Romer v. Evans, 517 U.S. 620 (1996),
permit us to cast Baker aside. But this reading of
doctrinal developments would be a groundbreaking
development of its own. From the perspective of a lower
court, summary dispositions remain controlling
precedent, unless and until re-examined by [the
Supreme] Court. Tully v. Griffin, Inc., 429 U.S. 68, 74
(1976); see Hicks, 422 U.S. at 34345. And the Court
has told us to treat the two types of decisions, whether
summary dispositions or full-merits decisions, the
same, prevent[ing] lower courts in both settings from
App. 26
coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions.
Mandel v. Bradley, 432 U.S. 173, 176 (1977). Lest
doubt remain, the Court has also told us not to ignore
its decisions even when they are in tension with a new
line of cases. If a precedent of this Court has direct
application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its
own decisions. Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989); see Agostini v.
Felton, 521 U.S. 203, 237 (1997).
Just two scenarios, then, permit us to ignore a
Supreme Court decision, whatever its form: when the
Court has overruled the decision by name (if, say,
Windsor had directly overruled Baker) or when the
Court has overruled the decision by outcome (if, say,
Hollingsworth had invalidated the California law
without mentioning Baker). Any other approach
returns us to a world in which the lower courts may
anticipatorily overrule all manner of Supreme Court
decisions based on counting-to-five predictions,
perceived trajectories in the caselaw, or, worst of all,
new appointments to the Court. In the end, neither of
the two preconditions for ignoring Supreme Court
precedent applies here. Windsor as shown does not
mention Baker, and it clarifies that its opinion and
holding do not govern the States authority to define
marriage. Hollingsworth was dismissed. And neither
Lawrence nor Romer mentions Baker, and neither is
inconsistent with its outcome. The one invalidates a
States criminal antisodomy law and explains that the
case does not involve . . . formal recognition of
App. 27
same-sex relationships. Lawrence, 539 U.S. at 578. The
other invalidates a [s]weeping and unprecedented
state law that prohibited local communities from
passing laws that protect citizens from discrimination
based on sexual orientation. Romer, 517 U.S. at 627,
633, 63536.
That brings us to another one-line order. On
October 6, 2014, the Supreme Court denied the
petitions for writs of certiorari in 1,575 cases, seven
of which arose from challenges to decisions of the
Fourth, Seventh, and Tenth Circuits that recognized a
constitutional right to same-sex marriage. But this
kind of action (or inaction) imports no expression of
opinion upon the merits of the case, as the bar has been
told many times. United States v. Carver, 260 U.S.
482, 490 (1923). The variety of considerations [that]
underlie denials of the writ counsels against according
denials of certiorari any precedential value. Teague v.
Lane, 489 U.S. 288, 296 (1989) (internal citation
omitted). Just as the Courts three decisions to stay
those same court of appeals decisions over the past
year, all without a registered dissent, did not end the
debate on this issue, so too the Courts decision to deny
certiorari in all of these appeals, all without a
registered dissent, does not end the debate either. A
decision not to decide is a decision not to decide.
But dont these denials of certiorari signal that, from
the Courts perspective, the right to same-sex marriage
is inevitable? Maybe; maybe not. Even if we grant the
premise and assume that same-sex marriage will be
recognized one day in all fifty States, that does not tell
us howwhether through the courts or through
democracy. And, if through the courts, that does not
App. 28
tell us whywhether through one theory of
constitutional invalidity or another. Four courts of
appeals thus far have recognized a constitutional right
to same-sex marriage. They agree on one thing: the
result. But they reach that outcome in many ways,
often more than one way in the same decision. See
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)
(fundamental rights); Baskin v. Bogan, 766 F.3d 648
(7th Cir. 2014) (rational basis, animus); Latta v. Otter,
No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014)
(animus, fundamental rights, suspect classification);
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014)
(fundamental rights); Kitchen v. Herbert, 755 F.3d 1193
(10th Cir. 2014) (same). The Courts certiorari denials
tell us nothing about the democracy-versus-litigation
path to same-sex marriage, and they tell us nothing
about the validity of any of these theories. If a federal
court denies the people suffrage over an issue long
thought to be within their power, they deserve an
explanation. We, for our part, cannot find one, as
several other judges have concluded as well. See Bostic,
760 F.3d at 38598 (Niemeyer, J., dissenting); Kitchen,
755 F.3d at 123040 (Kelly, J., concurring in part and
dissenting in part); Conde-Vidal v. Garcia-Padilla, No.
14-1253-PG, 2014 WL 5361987 (D.P.R. Oct. 21, 2014);
Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La.
2014).
There are many ways, as these lower court decisions
confirm, to look at this question: originalism; rational
basis review; animus; fundamental rights; suspect
classifications; evolving meaning. The parties in one
way or another have invoked them all. Not one of the
plaintiffs theories, however, makes the case for
constitutionalizing the definition of marriage and for
App. 29
removing the issue from the place it has been since the
founding: in the hands of state voters.
B.
Original meaning. All Justices, past and present,
start their assessment of a case about the meaning of
a constitutional provision by looking at how the
provision was understood by the people who ratified it.
If we think of the Constitution as a covenant between
the governed and the governors, between the people
and their political leaders, it is easy to appreciate the
force of this basic norm of constitutional
interpretationthat the originally understood meaning
of the charter generally will be the lasting meaning of
the charter. When two individuals sign a contract to
sell a house, no one thinks that, years down the road,
one party to the contract may change the terms of the
deal. That is why the parties put the agreement in
writing and signed it publiclyto prevent changed
perceptions and needs from changing the guarantees in
the agreement. So it normally goes with the
Constitution: The written charter cements the
limitations on government into an unbending bulwark,
not a vane alterable whenever alterations occur
unless and until the people, like contracting parties,
choose to change the contract through the agreed-upon
mechanisms for doing so. See U.S. Const. art. V. If
American lawyers in all manner of settings still invoke
the original meaning of Magna Carta, a Charter for
England in 1215, surely it is not too much to ask that
they (and we) take seriously the original meaning of
the United States Constitution, a Charter for this
country in 1789. Any other approach, too lightly
App. 30
followed, converts federal judges from interpreters of
the document into newly commissioned authors of it.
Many precedents gauging individual rights and
national power, leading to all manner of outcomes,
confirm the import of original meaning in legal debates.
See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137,
17380 (1803); McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 40125 (1819); Legal Tender Cases, 79
U.S. 457, 53638 (1870); Myers v. United States, 272
U.S. 52, 11039 (1926); INS v. Chadha, 462 U.S. 919,
94459 (1983); Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 21825 (1995); Washington v. Glucksburg,
521 U.S. 702, 71019 (1997); Crawford v. Washington,
541 U.S. 36, 4250 (2004); Boumediene v. Bush, 553
U.S. 723, 73946 (2008); Giles v. California, 554 U.S.
353, 35861 (2008); District of Columbia v. Heller, 554
U.S. 570, 576600 (2008).
In trying to figure out the original meaning of a
provision, it is fair to say, the line between
interpretation and evolution blurs from time to time.
That is an occupational hazard for judges when it
comes to old or generally worded provisions. Yet that
knotty problem does not confront us. Yes, the
Fourteenth Amendment is old; the people ratified it in
1868. And yes, it is generally worded; it says: [N]or
shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws. Nobody in this case, however, argues that
the people who adopted the Fourteenth Amendment
understood it to require the States to change the
definition of marriage.
App. 31
Tradition reinforces the point. Only months ago, the
Supreme Court confirmed the significance of
long-accepted usage in constitutional interpretation. In
one case, the Court held that the customary practice of
opening legislative meetings with prayer alone proves
the constitutional permissibility of legislative prayer,
quite apart from how that practice might fare under
the most up-to-date Establishment Clause test. Town
of Greece v. Galloway, 134 S. Ct. 1811, 181820 (2014).
In another case, the Court interpreted the Recess
Appointments Clause based in part on long-accepted
usage. NLRB v. Noel Canning, 134 S. Ct. 2550,
255960 (2014). Applied here, this approach permits
todays marriage laws to stand until the democratic
processes say they should stand no more. From the
founding of the Republic to 2003, every State defined
marriage as a relationship between a man and a
woman, meaning that the Fourteenth Amendment
permits, though it does not require, States to define
marriage in that way.
C.
Rational basis review. Doctrine leads to the same
place as history. A first requirement of any law,
whether under the Due Process or Equal Protection
Clause, is that it rationally advance a legitimate
government policy. Vance v. Bradley, 440 U.S. 93, 97
(1979). Two words (judicial restraint, FCC v. Beach
Commcns, Inc., 508 U.S. 307, 314 (1993)) and one
principle (trust in the people that even improvident
decisions will eventually be rectified by the democratic
process, Vance, 440 U.S. at 97) tell us all we need to
know about the light touch judges should use in
reviewing laws under this standard. So long as judges
App. 32
can conceive of some plausible reason for the
lawany plausible reason, even one that did not
motivate the legislators who enacted itthe law must
stand, no matter how unfair, unjust, or unwise the
judges may consider it as citizens. Heller v. Doe, 509
U.S. 312, 330 (1993); Nordlinger v. Hahn, 505 U.S. 1,
11, 1718 (1992).
A dose of humility makes us hesitant to condemn as
unconstitutionally irrational a view of marriage shared
not long ago by every society in the world, shared by
most, if not all, of our ancestors, and shared still today
by a significant number of the States. Hesitant, yes;
but still a rational basis, some rational basis, must
exist for the definition. What is it? Two at a minimum
suffice to meet this low bar. One starts from the
premise that governments got into the business of
defining marriage, and remain in the business of
defining marriage, not to regulate love but to regulate
sex, most especially the intended and unintended
effects of male-female intercourse. Imagine a society
without marriage. It does not take long to envision
problems that might result from an absence of rules
about how to handle the natural effects of male-female
intercourse: children. May men and women follow their
procreative urges wherever they take them? Who is
responsible for the children that result? How many
mates may an individual have? How does one decide
which set of mates is responsible for which set of
children? That we rarely think about these questions
nowadays shows only how far we have come and how
relatively stable our society is, not that States have no
explanation for creating such rules in the first place.
App. 33
Once one accepts a need to establish such ground
rules, and most especially a need to create stable
family units for the planned and unplanned creation of
children, one can well appreciate why the citizenry
would think that a reasonable first concern of any
society is the need to regulate male-female
relationships and the unique procreative possibilities
of them. One way to pursue this objective is to
encourage couples to enter lasting relationships
through subsidies and other benefits and to discourage
them from ending such relationships through these and
other means. People may not need the governments
encouragement to have sex. And they may not need the
governments encouragement to propagate the species.
But they may well need the governments
encouragement to create and maintain stable
relationships within which children may flourish. It is
not societys laws or for that matter any one religions
laws, but natures laws (that men and women
complement each other biologically), that created the
policy imperative. And governments typically are not
second-guessed under the Constitution for prioritizing
how they tackle such issues. Dandridge v. Williams,
397 U.S. 471, 48687 (1970).
No doubt, that is not the only way people view
marriage today. Over time, marriage has come to serve
another valueto solemnize relationships
characterized by love, affection, and commitment. Gay
couples, no less than straight couples, are capable of
sharing such relationships. And gay 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
App. 34
individual choices and individual commitment. All of
this supports the policy argument made by many that
marriage laws should be extended to gay couples, just
as nineteen States have done through their own
sovereign powers. Yet it does not show that the States,
circa 2014, suddenly must look at this policy issue in
just one way on pain of violating the Constitution.
The signature feature of rational basis review is
that governments will not be placed in the dock for
doing too much or for doing too little in addressing a
policy question. Id. In a modern sense, crystallized at
some point in the last ten years, many people now
critique state marriage laws for doing too littlefor
being underinclusive by failing to extend the definition
of marriage to gay couples. Fair enough. But rational
basis review does not permit courts to invalidate laws
every time a new and allegedly better way of
addressing a policy emerges, even a better way
supported by evidence and, in the Michigan case, by
judicial factfinding. If legislative choices may rest on
rational speculation unsupported by evidence or
empirical data, Beach Commcns, 508 U.S. at 315, it is
hard to see the point of premising a ruling of
unconstitutionality on factual findings made by one
unelected federal judge that favor a different policy.
Rational basis review does not empower federal courts
to subject legislative line-drawing to courtroom
factfinding designed to show that legislatures have
done too much or too little. Id.
What we are left with is this: By creating a status
(marriage) and by subsidizing it (e.g., with tax-filing
privileges and deductions), the States created an
incentive for two people who procreate together to stay
App. 35
together for purposes of rearing offspring. That does
not convict the States of irrationality, only of
awareness of the biological reality that couples of the
same sex do not have children in the same way as
couples of opposite sexes and that couples of the same
sex do not run the risk of unintended offspring. That
explanation, still relevant today, suffices to allow the
States to retain authority over an issue they have
regulated from the beginning.
To take another rational explanation for the
decision of many States not to expand the definition of
marriage, a State might wish to wait and see before
changing a norm that our society (like all others) has
accepted for centuries. That is not preserving tradition
for its own sake. No one here claims that the States
original definition of marriage was unconstitutional
when enacted. The plaintiffs claim is that the States
have acted irrationally in standing by the traditional
definition in the face of changing social mores. Yet one
of the key insights of federalism is that it permits
laboratories of experimentationaccent on the
pluralallowing one State to innovate one way,
another State another, and a third State to assess the
trial and error over time. As a matter of state law, the
possibility of gay marriage became real in 2003 with
the Massachusetts Supreme Judicial Courts decision
in Goodridge. Eleven years later, the clock has not run
on assessing the benefits and burdens of expanding the
definition of marriage. Eleven years indeed is not even
the right timeline. The fair question is whether in
2004, one year after Goodridge, Michigan voters could
stand by the traditional definition of marriage. How
can we say that the voters acted irrationally for
sticking with the seen benefits of thousands of years of
App. 36
adherence to the traditional definition of marriage in
the face of one year of experience with a new definition
of marriage? A State still assessing how this has
worked, whether in 2004 or 2014, is not showing
irrationality, just a sense of stability and an interest in
seeing how the new definition has worked elsewhere.
Even today, the only thing anyone knows for sure about
the long-term impact of redefining marriage is that
they do not know. A Burkean sense of caution does not
violate the Fourteenth Amendment, least of all when
measured by a timeline less than a dozen years long
and when assessed by a system of government designed
to foster step-by-step, not sudden winner-take-all,
innovations to policy problems.
In accepting these justifications for the four States
marriage laws, we do not deny the foolish, sometimes
offensive, inconsistencies that have haunted marital
legislation from time to time. States will hand some
people a marriage license no matter how often they
have divorced or remarried, apparently on the theory
that practice makes perfect. States will not even
prevent an individual from remarrying the same
person three or four times, where practice no longer
seems to be the issue. With love and commitment
nowhere to be seen, States will grant a marriage
license to two friends who wish to share in the tax and
other material benefits of marriage, at least until the
States no-fault divorce laws allow them to exit the
partnership freely. And States allow couples to
continue procreating no matter how little stability,
safety, and love they provide the children they already
have. Nor has unjustified sanctimony stayed off the
stage when it comes to marital legislationwith
monogamists who do not monog criticizing alleged
App. 37
polygamists who do not polyg. See Paul B. Beers,
Pennsylvania Politics Today and Yesterday 51 (1980).
How, the claimants ask, could anyone possibly be
unworthy of this civil institution? Arent gay and
straight couples both capable of honoring this civil
institution in some cases and of messing it up in
others? All of this, however, proves much too much.
History is replete with examples of love, sex, and
marriage tainted by hypocrisy. Without it, half of the
worlds literature, and three-quarters of its woe, would
disappear. Throughout, we have never leveraged these
inconsistencies about deeply personal, sometimes
existential, views of marriage into a ground for
constitutionalizing the field. Instead, we have allowed
state democratic forces to fix the problems as they
emerge and as evolving community mores show they
should be fixed. Even if we think about todays issue
and todays alleged inconsistencies solely from the
perspective of the claimants in this case, it is difficult
to call that formula, already coming to terms with a
new view of marriage, a failure.
Any other approach would create line-drawing
problems of its own. Consider how plaintiffs
love-and-commitment definition of marriage would fare
under their own rational basis test. Their definition
does too much because it fails to account for the reality
that no State in the country requires couples, whether
gay or straight, to be in love. Their definition does too
little because it fails to account for plural marriages,
where there is no reason to think that three or four
adults, whether gay, bisexual, or straight, lack the
capacity to share love, affection, and commitment, or
for that matter lack the capacity to be capable (and
App. 38
more plentiful) parents to boot. If it is constitutionally
irrational to stand by the man-woman definition of
marriage, it must be constitutionally irrational to stand
by the monogamous definition of marriage. Plaintiffs
have no answer to the point. What they might say they
cannot: They might say that tradition or community
mores provide a rational basis for States to stand by
the monogamy definition of marriage, but they cannot
say that because that is exactly what they claim is
illegitimate about the States male-female definition of
marriage. The predicament does not end there. No
State is free of marriage policies that go too far in some
directions and not far enough in others, making all of
them vulnerableif the claimants theory of rational
basis review prevails.
Several cases illustrate just how seriously the
federal courts must take the line-drawing deference
owed the democratic process under rational basis
review. Massachusetts Board of Retirement v. Murgia,
427 U.S. 307 (1976), holds that a State may require law
enforcement officers to retire without exception at age
fifty, in order to assure the physical fitness of its police
force. If a rough correlation between age and strength
suffices to uphold exception-free retirement ages (even
though some fifty-year-olds swim/bike/run triathlons),
why doesnt a correlation between male-female
intercourse and procreation suffice to uphold
traditional marriage laws (even though some straight
couples dont have kids and many gay couples do)?
Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012),
says that if a city cancels a tax, the bureaucratic hassle
of issuing refunds entitles it to keep money already
collected from citizens who paid early. If administrative
convenience amounts to an adequate public purpose,
App. 39
why not a rough sense of social stability? More
deferential still, Kotch v. Board of River Port Pilot
Commissioners, 330 U.S. 552 (1947), concludes that a
States interest in maintaining close ties among those
who steer ships in its ports justifies denying pilotage
licenses to anyone who isnt a friend or relative of an
incumbent pilot. Can we honestly say that traditional
marriage laws involve more irrationality than
nepotism?
The debate over marriage of course has another
side, and we cannot deny the costs to the plaintiffs of
allowing the States to work through this profound
policy debate. The traditional definition of marriage
denies gay couples the opportunity to publicly
solemnize, to say nothing of subsidize, their
relationships under state law. In addition to depriving
them of this status, it deprives them of benefits that
range from the 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. Do the benefits
of standing by the traditional definition of marriage
make up for these costs? The question demands an
answerbut from elected legislators, not life-tenured
judges. Our task under the Supreme Courts precedents
is to decide whether the law has some conceivable
basis, not to gauge how that rationale stacks up
against the arguments on the other side. Respect for
democratic control over this traditional area of state
expertise ensures that a statewide deliberative process
that enable[s] its citizens to discuss and weigh
arguments for and against same-sex marriage can
have free and reasonable rein. Windsor, 133 S. Ct. at
2689.
App. 40
D.
Animus. Given the broad deference owed the States
under the democracy-reinforcing norms of rational
basis review, the cases in which the Supreme Court has
struck down a state law on that basis are few. When
the Court has taken this step, it usually has been due
to the novelty of the law and the targeting of a single
group for disfavored treatment under it. In one case, a
city enacted a new zoning code with the none-too-subtle
purpose of closing down a home for the intellectually
disabled in a neighborhood that apparently wanted
nothing to do with them. The reality that the code
applied only to homes for the intellectually
disabledand not to other dwellings such as fraternity
housesled the Court to invalidate the regulation on
the ground that the city had based it upon an
irrational prejudice against the mentally retarded.
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
450 (1985). In another case, a statewide initiative
denied gays, and gays alone, access to the protection of
the States existing antidiscrimination laws. The
novelty of the law, coupled with the distance between
the reach of the law and any legitimate interest it
might serve, showed that the law was born of
animosity toward gays and suggested a design to
make gays unequal to everyone else. Romer, 517 U.S.
at 63435.
None of the statewide initiatives at issue here fits
this pattern. The four initiatives, enacted between 2004
and 2006, codified a long-existing, widely held social
norm already reflected in state law. [M]arriage
between a man and a woman, as the Court reminded
us just last year, had been thought of by most people
App. 41
as essential to the very definition of that term and to
its role and function throughout the history of
civilization. Windsor, 133 S. Ct. at 2689.
Neither was the decision to place the definition of
marriage in a States constitution unusual, nor did it
otherwise convey the kind of malice or unthinking
prejudice the Constitution prohibits. Nineteen States
did the same thing during that period. Human Rights
Campaign Found., Equality from State to State 2006, at
1314 (2006), available at http://s3.amazonaws.com/hrc
-assets//files/assets/resources/StateToState2007.pdf.
And if there was one concern animating the initiatives,
it was the fear that the courts would seize control over
an issue that people of good faith care deeply about. If
that is animus, the term has no useful meaning.
Who in retrospect can blame the voters for having
this fear? By then, several state courts had altered
their States traditional definitions of marriage under
the States constitutions. Since then, more have done
the same. Just as state judges have the authority to
construe a state constitution as they see fit, so do the
people have the right to overrule such decisions or
preempt them as they see fit. Nor is there anything
static about this process. In some States, the people
have since re-amended their constitutions to broaden
the category of those eligible to marry. In other States,
the people seemed primed to do the same but for now
have opted to take a wait-and-see approach of their
own as federal litigation proceeds. See, e.g., Wesley
Lowery, Same-Sex Marriage Is Gaining Momentum,
but Some Advocates Dont Want It on the Ballot in
Ohio, Wash. Post (June 14, 2014), http://www.washingt
onpost.com/politics/same-sex-marriage-is-gaining-mom
App. 42
entum-but-ohio-advocates-dont-want-it-on-the-ballot/
2014/06/14/a090452a-e77e-11e3-afc6-a1dd9407abcf_sto
ry.html (explaining that Ohio same-sex marriage
advocates opted not to place the question on the 2014
state ballot despite collecting nearly twice the number
of required signatures). What the Court recently said
about another statewide initiative that people care
passionately about applies with equal vigor here:
Deliberative debate on sensitive issues such as racial
preferences all too often may shade into rancor. But
that does not justify removing certain court-determined
issues from the voters reach. Democracy does not
presume that some subjects are either too divisive or
too profound for public debate. Schuette v. Coal. to
Defend Affirmative Action, 134 S. Ct. 1623, 1638
(2014). It is demeaning to the democratic process to
presume that the voters are not capable of deciding an
issue of this sensitivity on decent and rational
grounds. Id. at 1637.
What of the possibility that other motivations
affected the amendment process in the four States? If
assessing the motives of multimember legislatures is
difficult, assessing the motives of all voters in a
statewide initiative strains judicial competence. The
number of people who supported each
initiativeMichigan (2.7 million), Kentucky (1.2
million), Ohio (3.3 million), and Tennessee (1.4
million)was large and surely diverse. In addition to
the proper role of the courts in a democracy, many
other factors presumably influenced the voters who
supported and opposed these amendments: that some
politicians favored the amendment and others opposed
it; that some faith groups favored the amendment and
others opposed it; that some thought the amendment
App. 43
would strengthen families and others thought it would
weaken them or were not sure; that some thought the
amendment would be good for children and others
thought it would not be or were not sure; and that some
thought the amendment would preserve a
long-established definition of marriage and others
thought it was time to accommodate gay couples. Even
a rough sense of morality likely affected voters, with
some thinking it immoral to exclude gay couples and
others thinking the opposite. For most people, whether
for or against the amendment, the truth of why they
did what they did is assuredly complicated, making it
impossible to pin down any one consideration, as
opposed to a rough aggregation of factors, as
motivating them. How in this setting can we indict the
2.7 million Michigan voters who supported the
amendment in 2004, less than one year after the first
state supreme court recognized a constitutional right to
gay marriage, for favoring the amendment for
prejudicial reasons and for prejudicial reasons alone?
Any such conclusion cannot be squared with the benefit
of the doubt customarily given voters and legislatures
under rational basis review. Even the gay-rights
community, remember, was not of one mind about
taking on the benefits and burdens of marriage until
the early 1990s. See George Chauncey, Why Marriage?
The History Shaping Todays Debate over Gay Equality
58, 88 (2004); Michael J. Klarman, From the Closet to
the Altar: Courts, Backlash, and the Struggle for
Same-Sex Marriage 4852 (2013). A decade later, a
States voters should not be taken to task for failing to
be of one mind about the issue themselves.
Some equanimity is in order in assessing the
motives of voters who invoked a constitutionally
App. 44
respected vehicle for change and for resistance to
change: direct democracy. See Pac. States Tel. & Tel.
Co. v. Oregon, 223 U.S. 118, 151 (1912). Just as gay
individuals are no longer abstractions, neither should
we treat States as abstractions. Behind these
initiatives were real people who teach our children,
create our jobs, and defend our shores. Some of these
people supported the initiative in 2004; some did not.
It is no less unfair to paint the proponents of the
measures as a monolithic group of hate-mongers than
it is to paint the opponents as a monolithic group trying
to undo American families. Tolerance, like respect
and dignity, is best traveled on a two-way street.
Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012). If
there is a dominant theme to the Courts cases in this
area, it is to end otherness, not to create new others.
All of this explains why the Courts decisions in City
of Cleburne and Romer do not turn on reading the
minds of city voters in one case or of statewide
initiative supporters in the other. They turn on asking
whether anything but prejudice to the affected class
could explain the law. See City of Cleburne, 473 U.S. at
450; Romer, 517 U.S. at 635. No such explanations
existed in those cases. Plenty exist here, as shown
above and as recognized by many others. See Lawrence,
539 U.S. at 585 (OConnor, J., concurring in the
judgment) (Unlike the moral disapproval of same-sex
relations[,] . . . other reasons exist to promote the
institution of marriage beyond mere moral disapproval
of an excluded group.); Bishop, 760 F.3d at 110409
(Holmes, J., concurring) (same); Citizens for Equal
Prot. v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006)
(enactment not inexplicable by anything but animus
towards same-sex couples); Conaway v. Deane, 932
App. 45
A.2d 571, 635 (Md. 2007) (no reason to infer
antipathy); Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y.
2006) (those who favor the traditional definition are not
irrational, ignorant or bigoted); Andersen v. King
Cnty., 138 P.3d 963, 981 (Wash. 2006) (en banc) (the
only reason for the law was not anti-gay sentiment).
One other point. Even if we agreed with the
claimants that the nature of these state constitutional
amendments, and the debates surrounding them,
required their invalidation on animus grounds, that
would not give them what they request in their
complaints: the right to same-sex marriage. All that
the invalidation of the amendments would do is return
state law to where it had always been, a status quo
that in all four States included state statutory and
common law definitions of marriage applicable to one
man and one womandefinitions that no one claims
were motivated by ill will. The elimination of the state
constitutional provisions, it is true, would allow
individuals to challenge the four States other marital
laws on state constitutional grounds. No one filed such
a challenge here, however.
E.
Fundamental right to marry. Under the Due
Process Clause, courts apply more muscular
reviewstrict, rigorous, usually unforgiving,
scrutinyto laws that impair fundamental rights. In
considering the claimants arguments that they have a
fundamental right to marry each other, we must keep
in mind that something can be fundamentally
important without being a fundamental right under the
Constitution. Otherwise, state regulations of many
deeply important subjectsfrom education to
App. 46
healthcare to living conditions to decisions about when
to diewould be subject to unforgiving review. They
are not. See San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 35 (1973) (public education); Maher v. Roe,
432 U.S. 464, 469 (1977) (healthcare); Lindsey v.
Normet, 405 U.S. 56, 7374 (1972) (housing);
Glucksberg, 521 U.S. at 728 (right to die). Instead, the
question is whether our nation has treated the right as
fundamental and therefore worthy of protection under
substantive due process. More precisely, the test is
whether the right is deeply rooted in this Nations
history and tradition and implicit in the concept of
ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed. Glucksberg, 521
U.S. at 721 (internal citations omitted). That
requirement often is met by placing the right in the
Constitution, most obviously in (most of) the
guarantees in the Bill of Rights. See id. at 720. But the
right to marry in general, and the right to gay marriage
in particular, nowhere appear in the Constitution. That
route for recognizing a fundamental right to same-sex
marriage does not exist.
That leaves the other optionthat, even though a
proposed right to same-sex marriage does not appear in
the Constitution, it turns on bedrock assumptions
about liberty. This too does not work. The first state
high court to redefine marriage to include gay couples
did not do so until 2003 in Goodridge.
Matters do not change because Loving v. Virginia,
388 U.S. 1 (1967), held that marriage amounts to a
fundamental right. When the Court decided Loving,
marriage between a man and a woman no doubt [was]
thought of . . . as essential to the very definition of that
App. 47
term. Windsor, 133 S. Ct. at 2689. In referring to
marriage rather than opposite-sex marriage, Loving
confirmed only that opposite-sex marriage would
have been considered redundant, not that marriage
included same-sex couples. Loving did not change the
definition. That is why the Court said marriage is
fundamental to our very existence and survival, 388
U.S. at 12, a reference to the procreative definition of
marriage. Had a gay African-American male and a gay
Caucasian male been denied a marriage license in
Virginia in 1968, would the Supreme Court have held
that Virginia had violated the Fourteenth Amendment?
No one to our knowledge thinks so, and no Justice to
our knowledge has ever said so. The denial of the
license would have turned not on the races of the
applicants but on a request to change the definition of
marriage. Had Loving meant something more when it
pronounced marriage a fundamental right, how could
the Court hold in Baker five years later that gay
marriage does not even raise a substantial federal
question? Loving addressed, and rightly corrected, an
unconstitutional eligibility requirement for marriage;
it did not create a new definition of marriage.
A similar problem confronts the claimants reliance
on other decisions treating marriage as a fundamental
right, whether in the context of a statute denying
marriage licenses to fathers who could not pay child
support, Zablocki v. Redhail, 434 U.S. 374, 383 (1978),
or a regulation restricting prisoners ability to obtain
marriage licenses, Turner v. Safley, 482 U.S. 78, 9495
(1987). It strains credulity to believe that a year after
each decision a gay indigent father could have required
the State to grant him a marriage license for his
partnership or that a gay prisoner could have required
App. 48
the State to permit him to marry a gay partner. When
Loving and its progeny used the word marriage, they
did not redefine the term but accepted its traditional
meaning.
No doubt, many people, many States, even some
dictionaries, now define marriage in a way that is
untethered to biology. But that does not transform the
fundamental-rights decision of Loving under the old
definition into a constitutional right under the new
definition. The question is whether the old reasoning
applies to the new setting, not whether we can
shoehorn new meanings into old words. Else,
evolving-norm lexicographers would have a greater say
over the meaning of the Constitution than judges.
The upshot of fundamental-rights status, keep in
mind, is strict-scrutiny status, subjecting all state
eligibility rules for marriage to rigorous, usually
unforgiving, review. That makes little sense with
respect to the trials and errors societies historically
have undertaken (and presumably will continue to
undertake) in determining who may enter and leave a
marriage. Start with the duration of a marriage. For
some, marriage is a commitment for life and beyond.
For others, it is a commitment for life. For still others,
it is neither. In 1969, California enacted the first pure
no-fault divorce statute. See Family Law Act of 1969,
1969 Cal. Stat. 3312. A dramatic expansion of similar
laws followed. See Lynn D. Wardle, No-Fault Divorce
and the Divorce Conundrum, 1991 BYU L. Rev. 79, 90.
The Court has never subjected these policy fits and
starts about who may leave a marriage to strict
scrutiny.
App. 49
Consider also the number of people eligible to
marry. As late as the eighteenth century, [t]he
predominance of monogamy was by no means a
foregone conclusion, and [m]ost of the peoples and
cultures around the globe had adopted a different
system. Nancy F. Cott, Public Vows: A History of
Marriage and the Nation 9 (2000). Over time, American
officials wove monogamy into marriages fabric.
Beginning in the nineteenth century, the federal
government encouraged or forced Native Americans
to adopt the policy, and in 1878 the Supreme Court
upheld a federal antibigamy law. Id. at 26; see
Reynolds v. United States, 98 U.S. 145 (1878). The
Court has never taken this topic under its wing. And if
it did, how would the constitutional, as opposed to
policy, arguments in favor of same-sex marriage not
apply to plural marriages?
Consider finally the nature of the individuals
eligible to marry. The age of consent has not remained
constant, for example. Under Roman law, men could
marry at fourteen, women at twelve. The American
colonies imported that rule from England and kept it
until the mid-1800s, when the people began advocating
for a higher minimum age. Today, all but two States
set the number at eighteen. See Vivian E. Hamilton,
The Age of Marital Capacity: Reconsidering Civil
Recognition of Adolescent Marriage, 92 B.U. L. Rev.
1817, 182432 (2012). The same goes for the social
acceptability of marriage between cousins, a union
deemed desirable in many parts of the world; indeed,
around 10 percent of marriages worldwide are
between people who are second cousins or closer.
Sarah Kershaw, Living Together: Shaking Off the
Shame, N.Y. Times (Nov. 25, 2009), http://www.nytimes
App. 50
.com/2009/11/26/garden/26cousins.html. Even in the
United States, cousin marriage was not prohibited
until the mid-nineteenth century, when Kansas
followed by seven other Statesenacted the first ban.
See Diane B. Paul & Hamish G. Spencer, Its Ok, Were
Not Cousins by Blood: The Cousin Marriage
Controversy in Historical Perspective, 6 PLoS Biology
2627, 2627 (2008). The States, however, remain split:
half of them still permit the practice. Ghassemi v.
Ghassemi, 998 So. 2d 731, 749 (La. Ct. App. 2008).
Strict scrutiny? Neither Loving nor any other Supreme
Court decision says so.
F.
Discrete and insular class without political power.
A separate line of cases, this one under the Equal
Protection Clause, calls for heightened review of laws
that target groups whom legislators have singled out
for unequal treatment in the past. This argument faces
an initial impediment. Our precedents say that rational
basis review applies to sexual-orientation
classifications. See Davis v. Prison Health Servs., 679
F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan
Cnty. Bd. of Educ., 470 F.3d 250, 26061 (6th Cir.
2006); Stemler v. City of Florence, 126 F.3d 856, 87374
(6th Cir. 1997).
There is another impediment. The Supreme Court
has never held that legislative classifications based on
sexual orientation receive heightened review and
indeed has not recognized a new suspect class in more
than four decades. There are ample reasons for staying
the course. Courts consider four rough factors in
deciding whether to treat a legislative classification as
suspect and presumptively unconstitutional: whether
App. 51
the group has been historically victimized by
governmental discrimination; whether it has a defining
characteristic that legitimately bears on the
classification; whether it exhibits unchanging
characteristics that define it as a discrete group; and
whether it is politically powerless. See Rodriguez, 411
U.S. at 28.
We cannot deny the lamentable reality that gay
individuals have experienced prejudice in this country,
sometimes at the hands of public officials, sometimes at
the hands of fellow citizens. Stonewall, Anita Bryants
uninvited answer to the question Who are we to
judge?, unequal enforcement of antisodomy laws
between gay and straight partners, Matthew Shepard,
and the language of insult directed at gays and others
make it hard for anyone to deny the point. But we also
cannot deny that the institution of marriage arose
independently of this record of discrimination. The
traditional definition of marriage goes back thousands
of years and spans almost every society in history. By
contrast, American laws targeting same-sex couples
did not develop until the last third of the 20th century.
Lawrence, 539 U.S. at 570. This order of events
prevents us from inferring from history that prejudice
against gays led to the traditional definition of
marriage in the same way that we can infer from
history that prejudice against African Americans led to
laws against miscegenation. The usual leap from
history of discrimination to intensification of judicial
review does not work.
Windsor says nothing to the contrary. In arguing
otherwise, plaintiffs mistake Windsors avoidance of
App. 52
one federalism question for avoidance of federalism
altogether. Here is the key passage:
Despite these considerations, it is unnecessary
to decide whether this federal intrusion on state
power is a violation of the Constitution because
it disrupts the federal balance. The States
power in defining the marital relation is of
central relevance in this case quite apart from
principles of federalism. Here the States
decision to give this class of persons the right to
marry conferred upon them a dignity and status
of immense import. When the State used its
historic and essential authority to define the
marital relation in this way, its role and its
power in making the decision enhanced the
recognition, dignity, and protection of the class
in their own community. DOMA, because of its
reach and extent, departs from this history and
tradition of reliance on state law to define
marriage. [D]iscriminations of an unusual
character especially suggest careful
consideration to determine whether they are
obnoxious to the constitutional provision.
Windsor, 133 S. Ct. at 2692 (quoting Romer, 517 U.S.
at 633). Plaintiffs read these words (and others that
follow) as an endorsement of heightened review in
todays case, pointing to the first two sentences as proof
that individual dignity, not federalism, animates
Windsors holding.
Yet federalism permeates both parts of this passage
and both parts of the opinion. Windsor begins by
expressing doubts about whether Congress has the
delegated power to enact a statute like DOMA at all.
App. 53
But instead of resolving the case on the far-reaching
enumerated-power ground, it resolves the case on the
narrower Romer groundthat anomalous exercises of
power targeting a single group raise suspicion that
bigotry rather than legitimate policy is afoot. Why was
DOMA anomalous? Only federalism can supply the
answer. The national statute trespassed upon New
Yorks time-respected authority to define the marital
relation, including by enhanc[ing] the recognition,
dignity, and protection of gay and lesbian couples. Id.
Todays case involves no such divest[ing]/
depriv[ing]/undermin[ing] of a marriage status
granted through a States authority over domestic
relations within its borders and thus provides no basis
for inferring that the purpose of the state law was to
impose a disadvantage/a separate status/a stigma
on gay couples. Id. at 269295. When the Framers
split the atom of sovereignty, U.S. Term Limits, Inc.
v. Thornton, 514 U.S. 779, 838 (Kennedy, J.,
concurring), they did so to enhance liberty, not to allow
the National Government to divest liberty protections
granted by the States in the exercise of their historic
and in this instance nearly exclusive power. What we
have here is something entirely different. It is the
States doing exactly what every State has been doing
for hundreds of years: defining marriage as they see it.
The only thing that has changed is the willingness of
many States over the last eleven years to expand the
definition of marriage to encompass gay couples.
Any other reading of Windsor would require us to
subtract key passages from the opinion and add an
inverted holding. The Court noted that New York
without doubt had the power under its traditional
authority over marriage to extend the definition of
App. 54
marriage to include gay couples and that Congress had
no power to enact unusual legislation that interfered
with the States long-held authority to define marriage.
Windsor, 133 S. Ct. at 269293. A decision premised on
heightened scrutiny under the Fourteenth Amendment
that redefined marriage nationally to include same-sex
couples not only would divest the States of their
traditional authority over this issue, but it also would
authorize Congress to do something no one would have
thought possible a few years agoto use its Section 5
enforcement powers to add new definitions and
extensions of marriage rights in the years ahead. That
would leave the States with little authority to resolve
ever-changing debates about how to define marriage
(and the benefits and burdens that come with it)
outside the beck and call of Congress and the Court.
How odd that one branch of the National Government
(Congress) would be reprimanded for entering the fray
in 2013 and two branches of the same Government (the
Court and Congress) would take control of the issue a
short time later.
Nor, as the most modest powers of observation
attest, is this a setting in which political
powerlessness requires extraordinary protection from
the majoritarian political process. Rodriguez, 411 U.S.
at 28. This is not a setting in which dysfunction mars
the political process. See Reynolds v. Sims, 377 U.S.
533 (1964); Baker v. Carr, 369 U.S. 186 (1962). It is not
a setting in which the recalcitrance of Jim Crow
demands judicial, rather than we-cant-wait-forever
legislative, answers. See Brown v. Bd. of Educ., 347
U.S. 483 (1954). It is not a setting in which time shows
that even a potentially powerful group cannot make
headway on issues of equality. See Frontiero v.
App. 55
Richardson, 411 U.S. 677 (1973). It is not a setting
where a national crisisthe Depressionseemingly
demanded constitutional innovation. See W. Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937). And it is not
a setting, most pertinently, in which the local, state,
and federal governments historically disenfranchised
the suspect class, as they did with African Americans
and women. See United States v. Carolene Prods. Co.,
304 U.S. 144, 152 n.4 (1938).
Instead, from the claimants perspective, we have
an eleven-year record marked by nearly as many
successes as defeats and a widely held assumption that
the future holds more promise than the pastif the
federal courts will allow that future to take hold.
Throughout that time, other advances for the
claimants cause are manifest. Nationally, Dont Ask,
Dont Tell is gone. Locally, the Cincinnati charter
amendment that prevented gay individuals from
obtaining certain preferences from the city, upheld by
our court in 1997, Equality Found. of Greater
Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th
Cir. 1997), is no more. The Fourteenth Amendment
does not insulate influential, indeed eminently
successful, interest groups from a defining attribute of
all democratic initiativessome succeed, some
failparticularly when succeeding more and failing
less are in the offing.
Why, it is worth asking, the sudden change in
public opinion? If there is one thing that seems to
challenge hearts and minds, even souls, on this issue,
it is the transition from the abstract to the concrete. If
twenty-five percent of the population knew someone
who was openly gay in 1985, and seventy-five percent
App. 56
knew the same in 2000, Klarman, supra, at 197, it is
fair to wonder how few individuals still have not been
forced to think about the matter through the lens of a
gay friend or family member. That would be a discrete
and insular minority.
The States undoubted power over marriage
provides an independent basis for reviewing the laws
before us with deference rather than with skepticism.
An analogy shows why. When a state law targets
noncitizensa group marked by its lack of political
power and its history of enduring discriminationit
must in general meet the most demanding of
constitutional tests in order to survive a skirmish with
a court. But when a federal law targets noncitizens, a
mere rational basis will save it from invalidation. This
disparity arises because of the Nations authority (and
the States corresponding lack of authority) over
international affairs. Mathews v. Diaz, 426 U.S. 67,
8485 (1976). If federal preeminence in foreign
relations requires lenient review of federal immigration
classifications, why doesnt state preeminence in
domestic relations call for equally lenient review of
state marriage definitions?
G.
Evolving meaning. If all else fails, the plaintiffs
invite us to consider that [a] core strength of the
American legal system . . . is its capacity to evolve in
response to new ways of thinking about old policies.
DeBoer Appellees Br. at 5758. But even if we accept
this invitation and put aside the pastoriginal
meaning, tradition, time-respected doctrinethat does
not take the plaintiffs where they wish to go. We could,
to be sure, look at this case alongside evolving moral
App. 57
and policy considerations. The Supreme Court has done
so before. Lawrence, 539 U.S. at 573. It may do so
again. A prime part of the history of our Constitution
. . . is the story of the extension of constitutional rights
. . . to people once ignored or excluded. United States
v. Virginia, 518 U.S. 515, 557 (1996). Why not do so
here?
Even on this theory, the marriage laws do not
violate the Constitution. A principled jurisprudence of
constitutional evolution turns on evolution in societys
values, not evolution in judges values. Freed of
federal-court intervention, thirty-one States would
continue to define marriage the old-fashioned way.
Lawrence, by contrast, dealt with a situation in which
just thirteen States continued to prohibit sodomy, and
even then most of those laws had fallen into desuetude,
rarely being enforced at all. On this record, what right
do we have to say that societal values, as opposed to
judicial values, have evolved toward agreement in favor
of same-sex marriage?
The theory of the living constitution rests on the
premise that every generation has the right to govern
itself. If that premise prevents judges from insisting on
principles that society has moved past, so too should it
prevent judges from anticipating principles that society
has yet to embrace. It follows that States must enjoy
some latitude in matters of timing, for reasonable
people can disagree about just when public norms have
evolved enough to require a democratic response.
Todays case captures the point. Not long ago American
society took for granted the rough correlation between
marriage and creation of new life, a vision under which
limiting marriage to opposite-sex couples seemed
App. 58
natural. Not long from now, if current trends continue,
American society may define marriage in terms of
affirming mutual love, a vision under which the failure
to add loving gay couples seems unfair. Todays society
has begun to move past the first picture of marriage,
but it has not yet developed a consensus on the second.
If, before a new consensus has emerged on a social
issue, federal judges may decide when the time is ripe
to recognize a new constitutional right, surely the
people should receive some deference in deciding when
the time is ripe to move from one picture of marriage to
another. So far, not a single United States Supreme
Court Justice in American history has written an
opinion maintaining that the traditional definition of
marriage violates the Fourteenth Amendment. No one
would accuse the Supreme Court of acting irrationally
in failing to recognize a right to same-sex marriage in
2013. Likewise, we should hesitate to accuse the States
of acting irrationally in failing to recognize the right in
2004 or 2006 or for that matter today. Federal judges
engaged in the inherent pacing that comes with living
constitutionalism should appreciate the inherent
pacing that comes with democratic majorities deciding
within reasonable bounds when and whether to
embrace an evolving, as opposed to settled, societal
norm. The one form of pacing is akin to the other,
making it anomalous for the Court to hold that the
States act unconstitutionally when making reasonable
pacing decisions of their own.
From time to time, the Supreme Court has looked
beyond our borders in deciding when to expand the
meaning of constitutional guarantees. Lawrence, 539
U.S. at 576. Yet foreign practice only reinforces the
App. 59
impropriety of tinkering with the democratic process in
this setting. The great majority of countries across the
worldincluding such progressive democracies as
Australia and Finlandstill adhere to the traditional
definition of marriage. Even more telling, the European
Court of Human Rights ruled only a few years ago that
European human rights laws do not guarantee a right
to same-sex marriage. Schalk & Kopf v. Austria,
2010-IV Eur. Ct. H.R. 409. The area in question, it
explained in words that work just as well on this side
of the Atlantic, remains one of evolving rights with no
established consensus, which means that States must
enjoy [discretion] in the timing of the introduction of
legislative changes. Id. at 438. It reiterated this
conclusion as recently as this July, declaring that the
margin of appreciation to be afforded to States must
still be a wide one. Hmlinen v. Finland, No.
37359/09, HUDOC, at *19 (Eur. Ct. H.R. July 16,
2014). Our Supreme Court relied on the European
Courts gay-rights decisions in Lawrence. 539 U.S. at
576. What neutral principle of constitutional
interpretation allows us to ignore the European Courts
same-sex marriage decisions when deciding this case?
If the point is relevant in the one setting, it is relevant
in the other, especially in a case designed to treat like
matters alike.
Other practical considerations also do not favor the
creation of a new constitutional right here. While these
cases present a denial of access to many benefits, what
is [o]f greater importance to the claimants, as they
see it, is the loss of . . . dignity and respect occasioned
by these laws. Love Appellees Br. at 5. No doubt there
is much to be said for dignity and respect in the eyes
of the Constitution and its interpreters. But any loss of
App. 60
dignity and respect on this issue did not come from the
Constitution. It came from the neighborhoods and
communities in which gay and lesbian couples live, and
in which it is worth trying to correct the problem in the
first instanceand in that way to allow the formation
of consensus respecting the way the members of a
State treat each other in their daily contact and
constant interaction with each other. Windsor, 133 S.
Ct. at 2692.
For all of the power that comes with the authority
to interpret the United States Constitution, the federal
courts have no long-lasting capacity to change what
people think and believe about new social questions. If
the plaintiffs are convinced that litigation is the best
way to resolve todays debate and to change heads and
hearts in the process, who are we to say? Perhaps that
is not the only point, however. Yes, we cannot deny
thinking the plaintiffs deserve betterearned victories
through initiatives and legislation and the greater
acceptance that comes with them. But maybe the
American people too deserve betternot just in the
sense of having a say through representatives in the
legislature rather than through representatives in the
courts, but also in the sense of having to come face to
face with the issue. Rights need not be
countermajoritarian to count. See, e.g., Civil Rights Act
of 1964, Pub. L. No. 88352, 78 Stat. 241. Isnt the goal
to create a culture in which a majority of citizens
dignify and respect the rights of minority groups
through majoritarian laws rather than through
decisions issued by a majority of Supreme Court
Justices? It is dangerous and demeaning to the
citizenry to assume that we, and only we, can fairly
App. 61
understand the arguments for and against gay
marriage.
Last, but not least, federal courts never expand
constitutional guarantees in a vacuum. What one group
wants on one issue from the courts today, another
group will want on another issue tomorrow. The more
the Court innovates under the Constitution, the more
plausible it is for the Court to do still moreand the
more plausible it is for other advocates on behalf of
other issues to ask the Court to innovate still more.
And while the expansion of liberal and conservative
constitutional rights will solve, or at least sidestep, the
amendment-difficulty problem that confronts many
individuals and interest groups, it will exacerbate the
judge-confirmation problem. Faith in democracy with
respect to issues that the Constitution has not
committed to the courts reinforces a different, more
sustainable norm.
III.
Does the Constitution prohibit a State from denying
recognition to same-sex marriages conducted in other
States? That is the question presented in the two Ohio
cases (Obergefell and Henry), one of the Kentucky cases
(Bourke), and the Tennessee case (Tanco). Our answer
to the first question goes a long way toward answering
this one. If it is constitutional for a State to define
marriage as a relationship between a man and a
woman, it is also constitutional for the State to stand
by that definition with respect to couples married in
other States or countries.
The Constitution in general does not delineate when
a State must apply its own laws and when it must
App. 62
apply the laws of another State. Neither any federal
statute nor federal common law fills the gap.
Throughout our history, each State has decided for
itself how to resolve clashes between its laws and laws
of other sovereignsgiving rise to the field of conflict
of laws. The States enjoy wide latitude in fashioning
choice-of-law rules. Sun Oil Co. v. Wortman, 486 U.S.
717, 72729 (1988); Allstate Ins. Co. v. Hague, 449 U.S.
302, 30708 (1981).
The plaintiffs in these cases do not claim that
refusal to recognize out-of-state gay and lesbian
marriages violates the Full Faith and Credit Clause,
the principal constitutional limit on state choice-of-law
rules. Wisely so. The Clause does not require a State
to apply another States law in violation of its own
legitimate public policy. Nevada v. Hall, 440 U.S. 410,
422 (1979). If defining marriage as an opposite-sex
relationship amounts to a legitimate public policyand
we have just explained that it doesthe Full Faith and
Credit Clause does not prevent a State from applying
that policy to couples who move from one State to
another.
The plaintiffs instead argue that failure to recognize
gay marriages celebrated in other States violates the
Due Process and Equal Protection Clauses. But we do
not think that the invocation of these different clauses
justifies a different result. As shown, compliance with
the Due Process and Equal Protection Clauses in this
setting requires only a rational relationship between
the legislation and a legitimate public purpose. And a
State does not behave irrationally by insisting upon its
own definition of marriage rather than deferring to the
definition adopted by another State. Preservation of a
App. 63
States authority to recognize, or to opt not to recognize,
an out-of-state marriage preserves a States sovereign
interest in deciding for itself how to define the marital
relationship. It also discourages evasion of the States
marriage laws by allowing individuals to go to another
State, marry there, then return home. Were it
irrational for a State to adhere to its own policy, what
would be the point of the Supreme Courts repeated
holdings that the Full Faith and Credit Clause does
not require a State to apply another States law in
violation of its own public policy? Id.
Far from undermining these points, Windsor
reinforces them. The case observes that [t]he
definition of marriage is the foundation of the States
broader authority to regulate the subject of domestic
relations with respect to the protection of offspring,
property interests, and the enforcement of marital
responsibilities. 133 S. Ct. at 2691 (internal quotation
marks omitted). How could it be irrational for a State
to decide that the foundation of its domestic-relations
law will be its definition of marriage, not somebody
elses? Windsor adds that [e]ach state as a sovereign
has a rightful and legitimate concern in the marital
status of persons domiciled within its borders. Id. How
could it be irrational for a State to apply its definition
of marriage to a couple in whose marital status the
State as a sovereign has a rightful and legitimate
concern?
Nor does the policy of nonrecognition trigger
Windsors (or Romers) principle that unprecedented
exercises of power call for judicial skepticism. States
have always decided for themselves when to yield to
laws of other States. Exercising this power, States
App. 64
often have refused to enforce all sorts of out-of-state
rules on the grounds that they contradict important
local policies. See Restatement (First) of Conflict of
Laws 612; Restatement (Second) of Conflict of Laws
90. Even more telling, States in many instances have
refused to recognize marriages performed in other
States on the grounds that these marriages depart
from cardinal principles of the States
domestic-relations laws. See Restatement (First) of
Conflict of Laws 134; Restatement (Second) of
Conflict of Laws 283. The laws challenged here
involve routine rather than anomalous uses of state
power.
What of the reality that Ohio recognizes some
heterosexual marriages solemnized in other States
even if those marriages could not be performed in
Ohio? See, e.g., Mazzolini v. Mazzolini, 155 N.E.2d 206,
208 (Ohio 1958). The only reason Ohio could have for
banning recognition of same-sex marriages performed
elsewhere and not prohibiting heterosexual marriages
performed elsewhere, the Ohio plaintiffs claim, is
animus or discrimination[] of an unusual character.
Obergefell Appellees Br. at 18 (quoting Windsor, 133
S. Ct. at 2692).
But, in making this argument, the plaintiffs
misapprehend Ohio law, wrongly assuming that Ohio
would recognize as valid any heterosexual marriage
that was valid in the State that sanctioned it. That is
not the case. Ohio law recognizes some out-of-state
marriages that could not be performed in Ohio, but not
all such marriages. See, e.g., Mazzolini, 155 N.E.2d at
208 (marriage of first cousins); Hardin v. Davis, 16
Ohio Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage
App. 65
by proxy). In Mazzolini, the most relevant precedent,
the Ohio Supreme Court stated that a number of
heterosexual marriagesones that were incestuous,
polygamous, shocking to good morals, unalterably
opposed to a well defined public policy, or
prohibitedwould not be recognized in the State, even
if they were valid in the jurisdiction that performed
them. 155 N.E.2d at 20809 (noting that first-cousin
marriages fell outside this rule because they were not
made void by explicit provision and not incestuous).
Ohio law declares same-sex marriage contrary to the
States public policy, placing those marriages within
the longstanding exception to Ohios recognition rule.
See Ohio Rev. Code 3101.01(C).
IV.
That leaves one more claim, premised on the
constitutional right to travel. In the Tennessee case
(Tanco) and one of the Ohio cases (Henry), the
claimants maintain that a States refusal to recognize
out-of-state same-sex marriages illegitimately burdens
the right to travelin the one case by penalizing
couples who move into the State by refusing to
recognize their marriages, in the other by preventing
their child from obtaining a passport because the State
refused to provide a birth certificate that included the
names of both parents.
The United States Constitution does not mention a
right to travel by name. Yet the constitutional right to
travel from one State to another is firmly embedded in
our jurisprudence. Saenz v. Roe, 526 U.S. 489, 498
(1999) (internal quotation marks omitted). It provides
three guarantees: (1) the right of a citizen of one State
to enter and to leave another State; (2) the right to be
App. 66
treated as a welcome visitor rather than an unfriendly
alien when visiting a second State; and (3) the right of
new permanent residents to be treated like other
citizens of that State. Id. at 500.
Tennessees nonrecognition law does not violate
these prohibitions. It does not ban, or for that matter
regulate, movement into or out of the State other than
in the respect all regulations create incentives or
disincentives to live in one place or another. Most
critically, the law does not punish out-of-state new
residents in relation to its own born and bred.
Nonresidents are treated just like other citizens of
that State, id., because the State has not expanded the
definition of marriage to include gay couples in all
settings, whether the individuals just arrived in
Tennessee or descend from Andrew Jackson.
The same is true for the Ohio law. No regulation of
movement or differential treatment between the newly
resident and the longstanding resident occurs. All
Ohioans must follow the States definition of marriage.
With respect to the need to obtain an Ohio birth
certificate before obtaining a passport, they can get
one. The certificate just will not include both names of
the couple. The just of course goes to the heart of the
matter. In that respect, however, it is due process and
equal protection, not the right to travel, that govern the
issue.
* * *
This case ultimately presents two ways to think
about change. One is whether the Supreme Court will
constitutionalize a new definition of marriage to meet
new policy views about the issue. The other is whether
App. 67
the Court will begin to undertake a different form of
changechange in the way we as a country optimize
the handling of efforts to address requests for new civil
liberties.
If the Court takes the first approach, it may resolve
the issue for good and give the plaintiffs and many
others relief. But we will never know what might have
been. If the Court takes the second approach, is it not
possible that the traditional arbiters of changethe
peoplewill meet todays challenge admirably and
settle the issue in a productive way? In just eleven
years, nineteen States and a conspicuous District,
accounting for nearly forty-five percent of the
population, have exercised their sovereign powers to
expand a definition of marriage that until recently was
universally followed going back to the earliest days of
human history. That is a difficult timeline to criticize
as unworthy of further debate and voting. When the
courts do not let the people resolve new social issues
like this one, they perpetuate the idea that the heroes
in these change events are judges and lawyers. Better
in this instance, we think, to allow change through the
customary political processes, in which the people, gay
and straight alike, become the heroes of their own
stories by meeting each other not as adversaries in a
court system but as fellow citizens seeking to resolve a
new social issue in a fair-minded way.
For these reasons, we reverse.
App. 68
_________________
DISSENT
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge,
dissenting.
The great tides and currents which
engulf the rest of men do not turn
aside in their course to pass the judges by.
Benjamin Cardozo, The Nature of the
Judicial Process (1921)
The author of the majority opinion has drafted what
would make an engrossing TED Talk or, possibly, an
introductory lecture in Political Philosophy. But as an
appellate court decision, it wholly fails to grapple with
the relevant constitutional question in this appeal:
whether a states constitutional prohibition of same-sex
marriage violates equal protection under the
Fourteenth Amendment. Instead, the majority sets up
a false premisethat the question before us is who
should decide?and leads us through a largely
irrelevant discourse on democracy and federalism. In
point of fact, the real issue before us concerns what is
at stake in these six cases for the individual plaintiffs
and their children, and what should be done about it.
Because I reject the majoritys resolution of these
questions based on its invocation of vox populi and its
reverence for proceeding with caution (otherwise
known as the wait and see approach), I dissent.
In the main, the majority treats both the issues and
the litigants here as mere abstractions. Instead of
recognizing the plaintiffs as persons, suffering actual
App. 69
harm as a result of being denied the right to marry
where they reside or the right to have their valid
marriages recognized there, my colleagues view the
plaintiffs as social activists who have somehow
stumbled into federal court, inadvisably, when they
should be out campaigning to win the hearts and
minds of Michigan, Ohio, Kentucky, and Tennessee
voters to their cause. But these plaintiffs are not
political zealots trying to push reform on their fellow
citizens; they are committed same-sex couples, many of
them heading up de facto families, who want to achieve
equal statusde jure status, if you willwith their
married neighbors, friends, and coworkers, to be
accepted as contributing members of their social and
religious communities, and to be welcomed as fully
legitimate parents at their childrens schools. They
seek to do this by virtue of exercising a civil right that
most of us take for grantedthe right to marry.1
Readers who are familiar with the Supreme Courts
recent opinion in United States v. Windsor, 133 S. Ct.
2675 (2013), and its progeny in the circuit courts,
particularly the Seventh Circuits opinion in Baskin v.
Bogan, 766 F.3d 648, 654 (7th Cir. 2014) (Formally
these cases are about discrimination against the small
homosexual minority in the United States. But at a
See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (Marriage is

one of the basic civil rights of man, fundamental to our very
existence and survival.) (quoting Skinner v. Oklahoma, 316 U.S.
535, 541 (1942)). The Supreme Court has described the right to
marry as of fundamental importance for all individuals and as
part of the fundamental right of privacy implicit in the
Fourteenth Amendments Due Process Clause. Zablocki v.
Redhail, 434 U.S. 374, 384 (1978).
App. 70
deeper level, . . . they are about the welfare of
American children.), must have said to themselves at
various points in the majority opinion, But what about
the children? I did, and I could not find the answer in
the opinion. For although my colleagues in the majority
pay lip service to marriage as an institution conceived
for the purpose of providing a stable family unit
within which children may flourish, they ignore the
destabilizing effect of its absence in the homes of tens
of thousands of same-sex parents throughout the four
states of the Sixth Circuit.
Indeed, with the exception of Ohio, the defendants
in each of these casesthe proponents of their
respective defense of marriage amendmentsspent
virtually their entire oral arguments professing what
has come to be known as the irresponsible
procreation theory: that limiting marriage and its
benefits to opposite-sex couples is rational, even
necessary, to provide for unintended offspring by
channeling their biological procreators into the bonds
of matrimony. When we asked counsel why that goal
required the simultaneous exclusion of same-sex
couples from marrying, we were told that permitting
same-sex marriage might denigrate the institution of
marriage in the eyes of opposite-sex couples who
conceive out of wedlock, causing subsequent
abandonment of the unintended offspring by one or
both biological parents. We also were informed that
because same-sex couples cannot themselves produce
wanted or unwanted offspring, and because they must
therefore look to non-biological means of parenting that
require planning and expense, stability in a family unit
headed by same-sex parents is assured without the
benefit of formal matrimony. But, as the court in
App. 71
Baskin pointed out, many abandoned children [born
out of wedlock to biological parents] are adopted by
homosexual couples, and those children would be better
off both emotionally and economically if their adoptive
parents were married. Id. How ironic that
irresponsible, unmarried, opposite-sex couples in the
Sixth Circuit who produce unwanted offspring must be
channeled into marriage and thus rewarded with its
many psychological and financial benefits, while
same-sex couples who become model parents are
punished for their responsible behavior by being denied
the right to marry. As an obviously exasperated Judge
Posner responded after puzzling over this same
paradox in Baskin, Go figure. Id. at 662.
In addressing the irresponsible procreation
argument that has been referenced by virtually every
state defendant in litigation similar to this case, the
Baskin court noted that estimates put the number of
American children being raised by same-sex parents at
over 200,000. Id. at 663. Unintentional offspring are
the children most likely to be put up for adoption, id.
at 662, and because statistics show that same-sex
couples are many times more likely to adopt than
opposite-sex couples, same-sex marriage improves the
prospects of unintended children by increasing the
number and resources of prospective adopters. Id. at
663. Moreover, [i]f marriage is better for children who
are being brought up by their biological parents, it
must be better for children who are being brought up
by their adoptive parents. Id. at 664.
The concern for the welfare of children that echoes
throughout the Baskin opinion can be traced in part to
the earlier opinion in Windsor, in which the Supreme
App. 72
Court struck down, as unconstitutional on
equal-protection grounds, section 3 of the federal
Defense of Marriage Act (DOMA), which defined the
term marriage for federal purposes as mean[ing]
only a legal union between one man and one woman as
husband and wife, and the term spouse as
refer[ring] only to a person of the opposite sex who is
a husband or a wife. Id. at 2683 (citing 1 U.S.C. 7).
Although DOMA did not affect the prerogative of the
states to regulate marriage within their respective
jurisdictions, it did deprive same-sex couples whose
marriages were considered valid under state law of
myriad federal benefits. As Justice Kennedy, writing
for the majority, pointed out:
DOMAs principal effect is to identify a subset of
state-sanctioned marriages and make them
unequal. The principal purpose is to impose
inequality, not for other reasons like
governmental efficiency . . . . The differentiation
demeans the [same-sex] couple, whose moral
and sexual choices the Constitution protects, see
Lawrence [v. Texas], 539 U.S. 558 [(2003)], and
whose relationship the State has sought to
dignify. And it humiliates tens of thousands of
children now being raised by same-sex couples.
The law in question makes it even more difficult
for the children to understand the integrity and
closeness of their own family and its concord
with other families in their community and in
their daily lives.
Id. at 2694.
Looking more closely at the situation of just one of
the same-sex couples from the six cases before us
App. 73
brings Justice Kennedys words on paper to life. Two of
the Michigan plaintiffs, April DeBoer and Jayne
Rowse, are unmarried, same-sex partners who have
lived as a couple for eight years in a home they own
together. They are both trained and employed as
nurses, DeBoer in a hospital neonatal department and
Rowse in an emergency department at another
hospital. Together they are rearing three children but,
due to existing provisions in Michigans adoption laws,
DeBoer and Rowse are prohibited from adopting the
children as joint parents because they are unmarried.
Instead, Rowse alone adopted two children, who are
identified in the record as N and J. DeBoer adopted the
third child, who is identified as R.
All three children had difficult starts in life, and two
of them are now characterized as special needs
children. N was born on January 25, 2009, to a
biological mother who was homeless, had psychological
impairments, was unable to care for N, and
subsequently surrendered her legal rights to N. The
plaintiffs volunteered to care for the boy and brought
him into their home following his birth. In November
2009, Rowse completed the necessary steps to adopt N
legally.
Rowse also legally adopted J after the boys foster
care agency asked Rowse and DeBoer initially to serve
as foster parents and legal guardians for him, despite
the uphill climb the baby faced. According to the
plaintiffs amended complaint:
J was born on November 9, 2009, at Hutzel
Hospital, premature at 25 weeks, to a drug
addicted prostitute. Upon birth, he weighed 1
pound, 9 ounces and tested positive for
App. 74
marijuana, cocaine, opiates and methadone. His
birth mother abandoned him immediately after
delivery. J remained in the hospital in the NICU
for four months with myriad different health
complications, and was not expected to live. If he
survived, he was not expected to be able to walk,
speak or function on a normal level in any
capacity. . . . With Rowse and DeBoers constant
care and medical attention, many of Js physical
conditions have resolved.
The third adopted child, R, was born on February 1,
2010, to a 19-year-old girl who received no prenatal
care and who gave birth at her mothers home before
bringing the infant to the hospital where plaintiff
DeBoer worked. R continues to experience issues
related to her lack of prenatal care, including delayed
gross motor skills. She is in a physical-therapy
program to address these problems.
Both DeBoer and Rowse share in the
responsibilities of raising the two four-year-olds and
the five-year-old. The plaintiffs even have gone so far
as to coordinate their work schedules so that at least
one parent is generally home with the children to
attend to their medical needs and perform other
parental duties. Given the close-knit, loving
environment shared by the plaintiffs and the children,
DeBoer wishes to adopt N and J legally as a second
parent, and Rowse wishes to adopt R legally as her
second parent.
Although Michigan statutes allow married couples
and single persons to adopt, those laws preclude
unmarried couples from adopting each others children.
As a result, DeBoer and Rowse filed suit in federal
App. 75
district court challenging the Michigan adoption
statute, Michigan Compiled Laws 710.24, on federal
equal-protection grounds. They later amended their
complaint to include a challenge to the so-called
Michigan Marriage Amendment, see Mich. Const. art.
I, 25, added to the Michigan state constitution in
2004, after the district court suggested that the
plaintiffs injury was not traceable to the defendants
enforcement of section [710.24] but, rather, flowed
from the fact that the plaintiffs were not married, and
any legal form of same-sex union is prohibited in
Michigan. The case went to trial on the narrow legal
issue of whether the amendment could survive rational
basis review, i.e., whether it proscribes conduct in a
manner that is rationally related to any conceivable
legitimate governmental purpose.
The bench trial lasted for eight days and consisted
of testimony from sociologists, economists, law
professors, a psychologist, a historian, a demographer,
and a county clerk. Included in the plaintiffs
presentation of evidence were statistics regarding the
number of children in foster care or awaiting adoption,
as well as testimony regarding the difficulties facing
same-sex partners attempting to retain parental
influence over children adopted in Michigan. Gary
Gates, a demographer, and Vivek Sankaran, the
director of both the Child Advocacy Law Clinic and the
Child Welfare Appellate Clinic at the University of
Michigan Law School, together offered testimony
painting a grim picture of the plight of foster children
and orphans in the state of Michigan. For example,
Sankaran noted that just under 14,000 foster children
reside in Michigan, with approximately 3,500 of those
being legal orphans. Nevertheless, same-sex couples in
App. 76
the state are not permitted to adopt such children as a
couple. Even though one person can legally adopt a
child, should anything happen to that adoptive parent,
there is no provision in Michigans legal framework
that would ensure that the children would necessarily
remain with the surviving non-legal parent, even if
that parent went through the arduous, timeconsuming, expensive adoption-approval process. Thus,
although the State of Michigan would save money by
moving children from foster care or state care into
adoptive families, and although same-sex couples in
Michigan are almost three times more likely than
opposite-sex couples to be raising an adopted child and
twice as likely to be fostering a child, there remains a
legal disincentive for same-sex couples to adopt
children there.
David Brodzinsky, a developmental and clinical
psychologist, for many years on the faculty at Rutgers
University, reiterated the testimony that Michigans
ban on adoptions by same-sex couples increases the
potential risks to children awaiting adoptions. The
remainder of his testimony was devoted to a
systematic, statistic-based debunking of studies
intimating that children raised in gay or lesbian
families, ipso facto, are less well-adjusted than children
raised by heterosexual couples. Brodzinsky conceded
that marriage brings societal legitimatization and
stability to children but noted that he found no
statistically significant differences in general
characteristics or in development between children
raised in same-sex households and children raised in
opposite-sex households, and that the psychological
well-being, educational development, and peer
App. 77
relationships were the same in children raised in gay,
lesbian, or heterosexual homes.
Such findings led Brodzinsky to conclude that the
gender of a parent is far less important than the
quality of the parenting offered and that family
processes and resources are far better predictors of
child adjustment than the family structure. He testified
that those studies presuming to show that children
raised in gay and lesbian families exhibited more
adjustment problems and decreased educational
achievement were seriously flawed, simply because
they relied on statistics concerning children who had
come from families experiencing a prior traumatic
breakup of a failed heterosexual relationship. In fact,
when focusing upon children of lesbian families created
through donor insemination, Brodzinsky found no
differences in comparison with children from donor
insemination in heterosexual families or in comparison
with children conceived naturally in heterosexual
families. According to Brodzinsky, such a finding was
not surprising given the fact that all such children
experienced no family disruption in their past. For the
same reason, few differences were noted in studies of
children adopted at a very early age by same-sex
couples and children naturally born into heterosexual
families.
Nancy Cott, a professor of history at Harvard
University, the director of graduate studies there, and
the author of Public Vows: A History of Marriage and
the Nation, also testified on behalf of the plaintiffs. She
explained how the concept of marriage and the roles of
the marriage partners have changed over time. As
summarized by Cott, the wifes identity is no longer
App. 78
subsumed into that of her husband, interracial
marriages are legal now that the antiquated, racist
concept of preserving the purity of the white race has
fallen into its rightful place of dishonor, and traditional
gender-assigned roles are no longer standard. Cott also
testified that solemnizing marriages between same-sex
partners would create tangible benefits for Michigan
citizens because spouses would then be allowed to
inherit without taxation and would be able to receive
retirement, Social Security, and veterans benefits upon
the death of an eligible spouse. Moreover, statistics
make clear that heterosexual marriages have not
suffered or decreased in number as a result of states
permitting same-sex marriages. In fact, to the contrary,
Cott noted that there exists some evidence that many
young people now refuse to enter into heterosexual
marriages until their gay or lesbian friends can also
enjoy the legitimacy of state-backed marriages.
Michael Rosenfeld, a Stanford University
sociologist, testified about studies he had undertaken
that confirmed the hypothesis that legitimation of
same-sex relationships promotes their stability.
Specifically, Rosenfelds research established that
although same-sex couples living in states without
recognition of their commitments to each other did
have a higher break-up rate than heterosexual married
couples, the break-up rates of opposite-sex married
couples and same-sex couples in recognized civil unions
were virtually identical. Similarly, the break-up rates
of same-sex couples not living in a state-recognized
relationship approximated the break-up rate of
heterosexual couples cohabiting without marriage.
App. 79
Rosenfeld also criticized the methodology of studies
advanced by the defendants that disagreed with his
conclusions. According to Rosenfeld, those critical
studies failed to take into account the stability or lack
of stability of the various groups examined. For
example, he testified that one such study compared
children who had experienced no adverse family
transitions with children who had lived through many
such traumatic family changes. Not surprisingly,
children from broken homes with lower-income-earning
parents who had less education and lived in urban
areas performed more poorly in school than other
children. According to Rosenfeld, arguments to the
contrary that failed to control for such differences,
taken to their extreme, would lead to the conclusion
that only high-income individuals of Asian descent who
earned advanced degrees and lived in suburban areas
should be allowed to marry.
To counteract the testimony offered by the plaintiffs
witnesses, the defendants presented as witnesses the
authors or co-authors of three studies that disagreed
with the conclusions reached by the plaintiffs experts.
All three studies, however, were given little credence
by the district court because of inherent flaws in the
methods used or the intent of the authors. For example,
the New Family Structures Study reported by Mark
Regnerus, a sociologist at the University of Texas at
Austin, admittedly relied upon interviews of children
from gay or lesbian families who were products of
broken heterosexual unions in order to support a
conclusion that living with such gay or lesbian families
adversely affected the development of the children.
Regnerus conceded, moreover, that his own department
took the highly unusual step of issuing the following
App. 80
statement on the university website in response to the
release of the study:
[Dr. Regneruss opinions] do not reflect the views
of the sociology department of the University of
Texas at Austin. Nor do they reflect the views of
the American Sociological Association which
takes the position that the conclusions he draws
from his study of gay parenting are
fundamentally flawed on conceptual and
methodological grounds and that the findings
from Dr. Regnerus[s] work have been cited
inappropriately in efforts to diminish the civil
rights and legitimacy of LBGTQ partners and
their families.
In fact, the record before the district court reflected
clearly that Regneruss study had been funded by the
Witherspoon Institute, a conservative think tank
opposed to same-sex marriage, in order to vindicate
the traditional understanding of marriage.
Douglas Allen, the co-author of another study with
Catherine Pakaluk and Joe Price, testified that
children raised by same-sex couples graduated from
high school at a significantly lower rate than did
children raised by heterosexual married couples. On
cross-examination, however, Allen conceded that many
of those children who . . . were living in same-sex
households had previously lived in an opposite sex
household where their parents had divorced, broken
up, some kind of separation or transition.
Furthermore, Allen provided evidence of the bias
inherent in his study by admitting that he believed
that engaging in homosexual acts means eternal
separation from God, in other words[,] going to hell.
App. 81
The final study advanced by the defendants was
conducted by Loren Marks, a professor in human
ecology at Louisiana State University, in what was
admittedly an effort to counteract the groupthink
portrayed by perceived liberal psychologists. But
although Marks criticized what he perceived to be a
pronounced liberal lean on social issues by many
psychologists, he revealed his own bias by
acknowledging that he was a lay clergyman in the
Church of Jesus Christ of Latter Day Saints (LDS) and
that the LDS directive for a couple to be married by
Gods authority in Gods house, the holy temple, and
then to have children per the teaching that Gods
commandment for his children to multiply and
replenish the earth remains in force.
Presented with the admitted biases and
methodological shortcomings prevalent in the studies
performed by the defendants experts, the district court
found those witnesses largely unbelievable and not
credible. DeBoer v. Snyder, 973 F. Supp.2d 757, 768
(E.D. Mich. 2014). Proceeding to a legal analysis of the
core issue in the litigation, the district court then
concluded that the proscriptions of the marriage
amendment are not rationally related to any legitimate
state interest. Addressing the defendants three
asserted rational bases for the amendment,2 the
In the district court, the state did not advance an unintended

pregnancy argument, nor was that claim included in the states
brief on appeal, although counsel did mention it during oral
argument. In terms of optimal environment, the state
emphasized the need for children to have both a mom and a dad,
because men and women are different, and to have a biological
connection to their parents.
App. 82
district court found each such proffered justification
without merit.
Principally, the court determined that the
amendment is in no way related to the asserted state
interest in ensuring an optimal environment for
child-rearing. The testimony adduced at trial clearly
refuted the proposition that, all things being equal,
same-sex couples are less able to provide for the
welfare and development of children. Indeed, marriage,
whether between same-sex or opposite-sex partners,
increases stability within the family unit. By
permitting same-sex couples to marry, that stability
would not be threatened by the death of one of the
parents. Even more damning to the defendants
position, however, is the fact that the State of Michigan
allows heterosexual couples to marry even if the couple
does not wish to have children, even if the couple does
not have sufficient resources or education to care for
children, even if the parents are pedophiles or child
abusers, and even if the parents are drug addicts.
Furthermore, the district court found no reason to
believe that the amendment furthers the asserted state
interests in proceeding with caution before altering
the traditional definition of marriage or in upholding
tradition and morality. As recognized by the district
court, there is no legitimate justification for delay when
constitutional rights are at issue, and even adherence
to religious views or tradition cannot serve to strip
citizens of their right to the guarantee of equal
protection under the law.
Finally, and relatedly, the district court
acknowledged that the regulation of marriage
traditionally has been seen as part of a states police
App. 83
power but concluded that this fact cannot serve as an
excuse to ignore the constitutional rights of individual
citizens. Were it otherwise, the court observed, the
prohibition in Virginia and in many other states
against miscegenation still would be in effect today.
Because the district court found that regardless of
whoever finds favor in the eyes of the most recent
majority, the guarantee of equal protection must
prevail, the court held the amendment and its
implementing statutes unconstitutional because they
violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. Id. at
775.
If I were in the majority here, I would have no
difficulty in affirming the district courts opinion in
DeBoer. The record is rich with evidence that, as a
pragmatic matter, completely refutes the states effort
to defend the ban against same-sex marriage that is
inherent in the marriage amendment. Moreover, the
district court did a masterful job of supporting its legal
conclusions. Upholding the decision would also control
the resolution of the other five cases that were
consolidated for purposes of this appeal.
Is a thorough explication of the legal basis for such
a result appropriate? It is, of course. Is it necessary? In
my judgment, it is not, given the excellenteven
eloquentopinion in DeBoer and in the opinions that
have come from four other circuits in the last few
months that have addressed the same issues involved
here: Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)
(holding Utah statutes and state constitutional
amendment banning same-sex marriage
unconstitutional under the Fourteenth Amendment);
App. 84
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (same,
Virginia); Baskin v. Bogan, 766 F.3d 648 (7th Cir.
2014) (same, Indiana statute and Wisconsin state
constitutional amendment); and Latta v. Otter, Nos.
14-35420, 14-35421, 12-17668, 2014 WL 4977682 (9th
Cir. Oct. 7, 2014) (same, Idaho and Nevada statutes
and state constitutional amendments).3
Kitchen was decided primarily on the basis of
substantive due process, based on the Tenth Circuits
determination that under Supreme Court precedents,
the right to marry includes the right to marry the
person of ones choice. The court located the source of
that right in Supreme Court opinions such as Maynard
v. Hill, 125 U.S. 190, 205 (1888) (recognizing marriage
as the most important relation in life); Meyer v.
Nebraska, 262 U.S. 390, 399 (1923) (holding that the
liberty protected by the Fourteenth Amendment
includes the freedom to marry, establish a home and
bring up children); Loving, 388 U.S. at 12 (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.); Zablocki, 434 U.S. at 384
(recognizing that the right to marry is of fundamental
importance for all individuals); and Turner v. Safley,
482 U.S. 78, 95-96 (1987) (in the context of a prison
On October 6, the Supreme Court denied certiorari and lifted

stays in Kitchen, Bostic, and Baskin, putting into effect the district
court injunctions entered in each of those three cases. A stay of the
mandate in the Idaho case in Latta also has been vacated, and the
appeal in the Nevada case is not being pursued. As a result,
marriage licenses are currently being issued to same-sex couples
throughout mostif not allof the Fourth, Seventh, Ninth, and
Tenth Circuits.
App. 85
inmates right to marry, [such] marriages are
expressions of emotional support and public
commitment[,] . . . elements [that] are important and
significant aspects of the marital relationship even in
situations in which procreation is not possible).
Kitchen, 755 F.3d at 1209-11. The Tenth Circuit also
found that the Utah laws violated equal protection,
applying strict scrutiny because the classification in
question impinged on a fundamental right. In doing so,
the court rejected the states reliance on various
justifications offered to establish a compelling state
interest in denying marriage to same-sex couples,
finding an insufficient causal connection between the
prohibition on same-sex marriage and the states
articulated goals, which included a purported interest
in fostering biological reproduction, encouraging
optimal childrearing, and maintaining gendered
parenting styles. Id. at 1222. The court also rejected
the states prediction that legalizing same-sex marriage
would result in social discord, citing Watson v. City of
Memphis, 373 U.S. 526, 535 (1963) (rejecting
community confusion and turmoil as a reason to
delay desegregation of public parks). Id. at 1227.
The Fourth Circuit in Bostic also applied strict
scrutiny to strike down Virginias same-sex-marriage
prohibitions as infringing on a fundamental right,
citing Loving and observing that [o]ver the decades,
the Supreme Court has demonstrated that the right to
marry is an expansive liberty interest that may stretch
to accommodate changing societal norms. 760 F.3d at
376. In a thoughtful opinion, the court analyzed each of
the states proffered interests: maintaining control of
the definition of marriage, adhering to the tradition
of opposite-sex marriage, protecting the institution of
App. 86
marriage, encouraging responsible procreation, and
promoting the optimal childrearing environment. Id.
at 378. In each instance, the court found that there was
no link between the states purported compelling
interest and the exclusion of same-sex couples from
participating fully in our society, which is precisely the
type of segregation that the Fourteenth Amendment
cannot countenance. Id. at 384. As to the states
interest in federalism, the court pointed to the
long-recognized principle that [s]tate laws defining
and regulating marriage, of course, must respect the
constitutional rights of persons, id. at 379 (quoting
Windsor, 133 S. Ct. at 2691), and highlighted Windsors
reiteration of Lovings admonition that the states must
exercise their authority without trampling
constitutional guarantees. Id. Addressing the states
contention that marriage under state law should be
confined to opposite-sex couples because unintended
pregnancies cannot result from same-sex unions, the
court noted that [b]ecause same-sex couples and
infertile opposite-sex couples are similarly situated, the
Equal Protection Clause counsels against treating
these groups differently. Id. at 381-82 (citing City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985)).
The Seventh Circuits Baskin opinion is firmly
grounded in equal-protection analysis. The court
proceeded from the premise that [d]iscrimination by a
state or the federal government against a minority,
when based on an immutable characteristic of the
members of that minority (most familiarly skin color
and gender), and occurring against an historical
background of discrimination against the persons who
have that characteristic, makes the discriminatory law
App. 87
or policy constitutionally suspect. 766 F.3d at 654. But
the court also found that discrimination against
same-sex couples is irrational, and therefore
unconstitutional even if the discrimination is not
subjected to heightened scrutiny. Id. at 656. This
conclusion was based on the courts rejection of the
only rationale that the states put forth with any
convictionthat same-sex couples and their children
dont need marriage because same-sex couples cant
produce children, intended or unintended, an
argument so full of holes that it cannot be taken
seriously. Id. (emphasis in original). The court
therefore found it unnecessary to engage in the more
complex analysis found in more closely balanced
equal-protection cases or under the due process clause
of the Fourteenth Amendment. Id. at 656-57.
The Ninth Circuits opinion in Latta also focuses on
equal-protection principles in finding that Idahos and
Nevadas statutes and constitutional amendments
prohibiting same-sex marriage violate the Fourteenth
Amendment. Because the Ninth Circuit had recently
held in SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471, 481 (9th Cir. 2014), that classifications based
on sexual orientation are subject to heightened
scrutiny, a conclusion the court drew from its reading
of Windsor to require assessment more rigorous than
rational-basis review, the path to finding an
equal-protection violation was less than arduous. As
did the Tenth Circuit in Kitchen, the court in Latta
found it wholly illogical to think that same-sex
marriage would affect opposite-sex couples choices
with regard to procreation. Latta, 2014 WL 4977682, *5
(citing Kitchen, 755 F.3d at 1223).
App. 88
These four cases from our sister circuits provide a
rich mine of responses to every rationale raised by the
defendants in the Sixth Circuit cases as a basis for
excluding same-sex couples from contracting valid
marriages. Indeed, it would seem unnecessary for this
court to do more than cite those cases in affirming the
district courts decisions in the six cases now before us.
Because the correct result is so obvious, one is tempted
to speculate that the majority has purposefully taken
the contrary position to create the circuit split
regarding the legality of same-sex marriage that could
prompt a grant of certiorari by the Supreme Court and
an end to the uncertainty of status and the interstate
chaos that the current discrepancy in state laws
threatens. Perhaps that is the case, but it does not
relieve the dissenting member of the panel from the
obligation of a rejoinder.
Baker v. Nelson
If ever there was a legal dead letter emanating
from the Supreme Court, Baker v. Nelson, 409 U.S. 810
(1972), is a prime candidate. It lacks only a stake
through its heart. Nevertheless, the majority posits
that we are bound by the Courts aging one-line order
denying review of an appeal from the Minnesota
Supreme Court for want of a substantial federal
question. As the majority notes, the question
concerned the states refusal to issue a marriage license
to a same-sex couple, but the decision came at a point
in time when sodomy was legal in only one state in the
country, Illinois, which had repealed its anti-sodomy
statute in 1962. The Minnesota statute criminalizing
same-sex intimate relations was not struck down until
App. 89
2001, almost 30 years after Baker was announced.4 The
Minnesota Supreme Courts denial of relief to a
same-sex couple in 1971 and the United States
Supreme Courts conclusion that there was no
substantial federal question involved in the appeal thus
is unsurprising. As the majority notesnot facetiously,
one hopesthat was then; this is now.
At the same time, the majority argues that we are
bound by the eleven words in the order, despite the
Supreme Court silence on the matter in the 42 years
since it was issued. There was no recognition of Baker
in Romer v. Evans, 517 U.S. 620 (1996), nor in
Lawrence v. Texas, 539 U.S. 558 (2003), and not in
Windsor, despite the fact that the dissenting judge in
the Second Circuits opinion in Windsor made the same
argument that the majority makes in this case. See
Windsor v. United States, 699 F.3d 169, 189, 192-95 (2d
Cir. 2012) (Straub, J., dissenting in part and
concurring in part). And although the argument was
vigorously pressed by the DOMA proponents in their
Supreme Court brief in Windsor,5 neither Justice
Kennedy in his opinion for the court nor any of the four
dissenting judges in their three separate opinions
mentioned Baker. In addition, the order was not cited
in the three orders of October 6, 2014, denying
certiorari in Kitchen, Bostic, and Baskin. If this string
See Doe v. Ventura, No. 01-489, 2001 WL 543734 (D. Ct. of

Hennepin Cnty. May 15, 2001) (unreported).
See United States v. Windsor, Brief on the Merits for Respondent

the Bipartisan Legal Advisory Group of the U.S. House of
Representatives, No. 12-307, 2013 WL 267026 at 16-19, 25-26 (Jan.
22, 2013).
App. 90
of casesRomer, Lawrence, Windsor, Kitchen, Bostic,
and Baskindoes not represent the Courts overruling
of Baker sub silentio, it certainly creates the doctrinal
development that frees the lower courts from the
strictures of a summary disposition by the Supreme
Court. See Hicks v. Miranda, 422 U.S. 332, 344 (1975)
(internal quotation marks and citation omitted).
Definition of Marriage
The majoritys original meaning analysis strings
together a number of case citations but can tell us little
about the Fourteenth Amendment, except to assure us
that the people who adopted the Fourteenth
Amendment [never] understood it to require the States
to change the definition of marriage. The quick answer
is that they undoubtedly did not understand that it
would also require school desegregation in 1955 or the
end of miscegenation laws across the country,
beginning in California in 1948 and culminating in the
Loving decision in 1967. Despite a civil war, the end of
slavery, and ratification of the Fourteenth Amendment
in 1868, extensive litigation has been necessary to
achieve even a modicum of constitutional protection
from discrimination based on race, and it has occurred
primarily by judicial decree, not by the democratic
election process to which the majority suggests we
should defer regarding discrimination based on sexual
orientation.
Moreover, the majoritys view of marriage as a
social institution defined by relationships between men
and women is wisely described in the plural. There is
not now and never has been a universally accepted
definition of marriage. In early Judeo-Christian law
and throughout the West in the Middle Ages, marriage
App. 91
was a religious obligation, not a civil status.
Historically, it has been pursued primarily as a
political or economic arrangement. Even today,
polygynous marriages outnumber monogamous
onesthe practice is widespread in Africa, Asia, and
the Middle East, especially in countries following
Islamic law, which also recognizes temporary
marriages in some parts of the world. In Asia and the
Middle East, many marriages are still arranged and
some are even coerced.
Although some of the older statutes regarding
marriage cited by the majority do speak of the union of
a man and a woman, the picture hardly ends there.
When Justice Alito noted in Windsor that the
opponents of DOMA were implicitly ask[ing] us to
endorse [a more expansive definition of marriage and]
to reject the traditional view, Windsor, 133 S. Ct. at
2718 (Alito, J., dissenting), he may have been
unfamiliar with all that the traditional view entailed,
especially for women who were subjected to coverture
as a result of Anglo-American common law. Fourteenth
Amendment cases decided by the Supreme Court in the
years since 1971 that invalidat[ed] various laws and
policies that categorized by sex have been part of a
transformation that has altered the very institution at
the heart of this case, marriage. Latta, 2014 WL
4977682, at *20 (Berzon, J., concurring).
Historically, marriage was a profoundly unequal
institution, one that imposed distinctly different
rights and obligations on men and women. The
law of coverture, for example, deemed the the
husband and wife . . . one person, such that the
very being or legal existence of the woman [was]
App. 92
suspended . . . or at least [was] incorporated and
consolidated into that of the husband during
the marriage. 1 William Blackstone,
Commentaries on the Laws of England 441 (3d
rev. ed. 1884). Under the principles of coverture,
a married woman [was] incapable, without her
husbands consent, of making contracts . . .
binding on her or him. Bradwell v. Illinois, 83
U.S. 130, 141 (1872) (Bradley, J., concurring).
She could not sue or be sued without her
husbands consent. See, e.g., Nancy F. Cott,
Public Vows: A History of Marriage and the
Nation 1112 (2000). Married women also could
not serve as the legal guardians of their
children. Frontiero v. Richardson, 411 U.S. 677,
685 (1973) (plurality op.).
Marriage laws further dictated economically
disparate roles for husband and wife. In many
respects, the marital contract was primarily
understood as an economic arrangement
between spouses, whether or not the couple had
or would have children. Coverture expressed
the legal essence of marriage as reciprocal: a
husband was bound to support his wife, and in
exchange she gave over her property and labor.
Cott, Public Vows, at 54. That is why married
women traditionally were denied the legal
capacity to hold or convey property . . . .
Frontiero, 411 U.S. at 685. Notably, husbands
owed their wives support even if there were no
children of the marriage. See, e.g., Hendrik
Hartog, Man and Wife in America: A History 156
(2000).
App. 93
There was also a significant disparity between
the rights of husbands and wives with regard to
physical intimacy. At common law, a woman
was the sexual property of her husband; that is,
she had a duty to have intercourse with him.
John DEmilio & Estelle B. Freedman, Intimate
Matters: A History of Sexuality in America 79
(3d ed. 2012). Quite literally, a wife was legally
the possession of her husband, . . . [her]
husbands property. Hartog, Man and Wife in
America, at 137. Accordingly, a husband could
sue his wifes lover in tort for entic[ing] her or
alienat[ing] her affections and thereby
interfering with his property rights in her body
and her labor. Id. A husbands possessory
interest in his wife was undoubtedly also driven
by the fact that, historically, marriage was the
only legal site for licit sex; sex outside of
marriage was almost universally criminalized.
See, e.g., Ariela R. Dubler, Immoral Purposes:
Marriage and the Genus of Illicit Sex, 115 Yale
L.J. 756, 76364 (2006).
Notably, although sex was strongly presumed to
be an essential part of marriage, the ability to
procreate was generally not. See, e.g., Chester
Vernier, American Family Laws: A Comparative
Study of the Family Law of the Forty-Eight
American States, Alaska, the District of
Columbia, and Hawaii (to Jan. 1, 1931) (1931) I
50, 23946 (at time of survey, grounds for
annulment typically included impotency, as well
as incapacity due to minority or non-age; lack
of understanding and insanity; force or duress;
fraud; disease; and incest; but not inability to
App. 94
conceive); II 68, at 3839 (1932) (at time of
survey, grounds for divorce included
impotence; vast majority of states generally
held that impotence. . . does not mean sterility
but must be of such a nature as to render
complete sexual intercourse practically
impossible; and only Pennsylvania ma[d]e
sterility a cause for divorce).
The common law also dictated that it was legally
impossible for a man to rape his wife. Men could
not be prosecuted for spousal rape. A husbands
incapacity to rape his wife was justified by the
theory that the marriage constitute[d] a
blanket consent to sexual intimacy which the
woman [could] revoke only by dissolving the
marital relationship. See, e.g., Jill Elaine
Hasday, Contest and Consent: A Legal History of
Marital Rape, 88 Calif. L. Rev 1373, 1376 n.9
(2000) (quoting Model Penal Code and
Commentaries, 213.1 cmt. 8(c), at 342 (Official
Draft and Revised Comments 1980)).
Concomitantly, dissolving the marital
partnership via divorce was exceedingly difficult.
Through the mid-twentieth century, divorce
could be obtained only on a limited set of
grounds, if at all. At the beginning of our
nations history, several states did not permit
full divorce except under the narrowest of
circumstances; separation alone was the remedy,
even if a woman could show cruelty
endangering life or limb. Peter W. Bardaglio,
Reconstructing the Household: Families, Sex,
and the Law in the Nineteenth-Century South 33
App. 95
(1995); see also id. 3233. In part, this policy
dovetailed with the grim fact that, at English
common law, and in several states through the
beginning of the nineteenth century, a
husbands prerogative to chastise his wifethat
is, to beat her short of permanent injurywas
recognized as his marital right. Reva B. Siegel,
The Rule of Love: Wife Beating as Prerogative
and Privacy, 105 Yale L.J. 2117, 2125 (1996).
Id. at *20-21.
Women were not the only class deprived of equal
status in traditional marriage. Until the end of the
Civil War in 1865, slaves were prohibited from
contracting legal marriages and often resorted to
jumping the broomstick to mark a monogamous
conjugal relationship. Informal slave marriage was
the rule until the end of the war, when Freedmens
Bureaus began issuing marriage licenses to former
slaves who could establish the existence of
long-standing family relationships, despite the fact that
family members were sometimes at great distances
from one another. The ritual of jumping the
broomstick, thought of in this country in terms of slave
marriages, actually originated in England, where civil
marriages were not available until enactment of the
Marriage Act of 1837. Prior to that, the performance of
valid marriages was the sole prerogative of the Church
of England, unless the participants were Quakers or
Jews. The majoritys admiration for traditional
marriage thus seems misplaced, if not nave. The legal
status has been through so many reforms that the
marriage of same-sex couples constitutes merely the
latest wave in a vast sea of change.
App. 96
Rational-Basis Review.
The principal thrust of the majoritys rational-basis
analysis is basically a reiteration of the same tired
argument that the proponents of same-sex-marriage
bans have raised in litigation across the country:
marriage is about the regulation of procreative urges
of men and women who therefore do not need the
governments encouragement to have sex but,
instead, need encouragement to create and maintain
stable relationships within which children may
flourish. The majority contends that exclusion of
same-sex couples from marriage must be considered
rational based on the biological reality that couples of
the same sex do not have children in the same way as
couples of opposite sexes and that couples of the same
sex do not run the risk of unintended children. As
previously noted, however, this argument is one that
an eminent jurist has described as being so full of
holes that it cannot be taken seriously. Baskin, 766
F.3d at 656 (Posner, J.).
At least my colleagues are perceptive enough to
acknowledge that [g]ay couples, no less than straight
couples, are capable of sharing such relationships . . .
[and] are capable of raising stable families. The
majority is even persuaded that the quality of
[same-sex] relationships, and the capacity to raise
children within them, turns not on sexual orientation
but on individual choices and individual commitment.
All of which, the majority surmises, supports the
policy argument made by many that marriage laws
should be extended to gay couples. But this conclusion
begs the question: why reverse the judgments of four
App. 97
federal district courts, in four different states, and in
six different cases that would do just that?
There are apparently two answers; first, let the
people decide and, second, give it time. The majority
posits that just as [same-sex marriage has been
adopted in] nineteen states and the District of
Columbia, the change-agents in the Sixth Circuit
should be elected legislators, not life-tenured judges.
Of course, this argument fails to acknowledge the
impracticalities involved in amending, re-amending, or
un-amending a state constitution.6 More to the point,
under our constitutional system, the courts are
assigned the responsibility of determining individual
rights under the Fourteenth Amendment, regardless of
popular opinion or even a plebiscite. As the Supreme
Court has noted, It is plain that the electorate as a
whole, whether by referendum or otherwise, could not
order [government] action violative of the Equal
Protection Clause, and the [government] may not avoid
In Tennessee, for example, a proposed amendment must first be

approved by a simple majority of both houses. In the succeeding
legislative session, which can occur as long as a year or more later,
the same proposed amendment must then be approved by
two-thirds of all the members elected to each house. Tenn. Const.
art. XI, 3. The proposed amendment is then presented to the
people at the next general election in which a Governor is to be
chosen, id., which can occur as long as three years or more later.
If a majority of all citizens voting in the gubernatorial election also
approve of the proposed amendment, it is considered ratified. The
procedure for amending the constitution by convention can take
equally long and is, if anything, more complicated. In Michigan, a
constitutional convention, one of three methods of amendment, can
be called no more often than every 16 years. See Mich. Const. art.
XII, 3.
App. 98
the strictures of that Clause by deferring to the wishes
or objections of some fraction of the body politic. City
of Cleburne, 473 U.S. at 448 (internal citation omitted).
Moreover, as it turns out, legalization of same-sex
marriage in the nineteen states and the District of
Columbia mentioned by the majority was not
uniformly the result of popular vote or legislative
enactment. Nine states now permit same-sex marriage
because of judicial decisions, both state and federal:
Massachusetts, Connecticut, Iowa, New Mexico, and
Colorado (state supreme court decisions); New Jersey
(state superior court decision not appealed by
defendant); California (federal district court decision
allowed to stand in ruling by United States Supreme
Court); and Oregon and Pennsylvania (federal district
court decisions not appealed by defendants). Despite
the majoritys insistence that, as life-tenured judges,
we should step aside and let the voters determine the
future of the state constitutional provisions at issue
here, those nine federal and state courts have seen no
acceptable reason to do so. In addition, another 16
states have been or soon will be added to the list, by
virtue of the Supreme Courts denial of certiorari
review in Kitchen, Bostick, and Baskin, and the Courts
order dissolving the stay in Latta. The result has been
the issuance of hundredsperhaps thousandsof
marriage licenses in the wake of those orders.
Moreover, the 35 states that are now positioned to
recognize same-sex marriage are comparable to the 34
states that permitted interracial marriage when the
Supreme Court decided Loving. If the majority in this
case is waiting for a tipping point, it seems to have
arrived.
App. 99
The second contention is that we should wait and
see what the fallout is in the states where same-sex
marriage is now legal. The majority points primarily to
Massachusetts, where same-sex couples have had the
benefit of marriage for only ten yearsnot enough
time, the majority insists, to know what the effect on
society will be. But in the absence of hard evidence that
the sky has actually fallen in, the states as
laboratories of democracy metaphor and its pitch for
restraint has little or no resonance in the fast-changing
scene with regard to same-sex marriage. Yet, whenever
the expansion of a constitutional right is proposed,
proceed with caution seems to be the universal
mantra of the opponents. The same argument was
made by the State of Virginia in Loving. And, in
Frontiero v. Richardson, 411 U.S. 677 (1973), the
government asked the Court to postpone applying
heightened scrutiny to allegations of gender
discrimination in a statute denying equal benefits to
women until the Equal Rights Amendment could be
ratified. If the Court had listened to the argument, we
would, of course, still be waiting. One is reminded of
the admonition in Martin Luther King, Jr.s Letter
from Birmingham Jail (1963): For years now I have
heard the word Wait! . . . [But h]uman progress never
rolls in on wheels of inevitability . . . [and] time itself
becomes an ally of the forces of social stagnation.
Animus
Finally, there is a need to address briefly the subject
of unconstitutional animus, which the majority opinion
equates only with actual malice and hostility on the
part of members of the electorate. But in many
instances involving rational-basis review, the Supreme
App. 100
Court has taken a more objective approach to the
classification at issue, rather than a subjective one.
Under such an analysis, it is not necessary for a court
to divine individual malicious intent in order to find
unconstitutional animus. Instead, the Supreme Court
has instructed that an exclusionary law violates the
Equal Protection Clause when it is based not upon
relevant facts, but instead upon only a general,
ephemeral distrust of, or discomfort with, a particular
group, for example, when legislation is justified by the
bare desire to exclude an unpopular group from a social
institution or arrangement. In City of Cleburne, for
example, the Court struck down a zoning regulation
that was justified simply by the negative attitude of
property owners in the community toward individuals
with intellectual disabilities, not necessarily by actual
malice toward an unpopular minority. In doing so, the
Court held that the City may not avoid the strictures
of the [Equal Protection] Clause by deferring to the
wishes or objections of some fraction of the body
politic, 473 U.S. at 448, and cited Palmore v. Sidoti,
466 U.S. 429, 433 (1984), for the proposition that
[p]rivate biases may be outside the reach of the law,
but the law cannot, directly or indirectly, give them
effect. In any event, as the majority here concedes, we
as a country have such a long history of prejudice based
on sexual orientation that it seems hypocritical to deny
the existence of unconstitutional animus in the
rational-basis analysis of the cases before us.
To my mind, the soundest description of this
analysis is found in Justice Stevenss separate opinion
in City of Cleburne:
App. 101
In every equal protection case, we have to ask
certain basic questions. What class is harmed by
the legislation, and has it been subjected to a
tradition of disfavor by our laws? What is the
public purpose that is being served by the law?
What is the characteristic of the disadvantaged
class that justifies the disparate treatment? In
most cases the answer to these questions will
tell us whether the statute has a rational
basis.
Id. at 453 (Stevens, J., concurring) (footnotes omitted).
I would apply just this analysis to the constitutional
amendments and statutes at issue in these cases,
confident that the result of the inquiry would be to
affirm the district courts decisions in all six cases. I
therefore dissent from the majoritys decision to
overturn those judgments.
Today, my colleagues seem to have fallen prey to
the misguided notion that the intent of the framers of
the United States Constitution can be effectuated only
by cleaving to the legislative will and ignoring and
demonizing an independent judiciary. Of course, the
framers presciently recognized that two of the three
co-equal branches of government were representative
in nature and necessarily would be guided by
self-interest and the pull of popular opinion. To
restrain those natural, human impulses, the framers
crafted Article III to ensure that rights, liberties, and
duties need not be held hostage by popular whims.
More than 20 years ago, when I took my oath of
office to serve as a judge on the United States Court of
Appeals for the Sixth Circuit, I solemnly swore to
administer justice without respect to persons, to do
App. 102
equal right to the poor and to the rich, and to
faithfully and impartially discharge and perform all
the duties incumbent upon me . . . under the
Constitution and laws of the United States. See 28
U.S.C. 453. If we in the judiciary do not have the
authority, and indeed the responsibility, to right
fundamental wrongs left excused by a majority of the
electorate, our whole intricate, constitutional system of
checks and balances, as well as the oaths to which we
swore, prove to be nothing but shams.
App. 103
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Civil Action No. 12-CV-10285
HON. BERNARD A. FRIEDMAN
[Filed March 21, 2014]
____________________________________
APRIL DEBOER, individually and
)
as parent and next friend of N.D.-R, )
R.D.-R., and J.D.-R, minors, and
)
JAYNE ROWSE, individually and as )
parent and next friend of N.D.-R,
)
R.D.-R., and J.D.-R, minors,
)
)
Plaintiffs,
)
)
vs.
)
)
RICHARD SNYDER, in his official
)
capacity as Governor of the State of
)
Michigan, and BILL SCHUETTE,
)
in his official capacity as Michigan
)
Attorney General,
)
)
Defendants.
)
___________________________________ )
App. 104
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Plaintiffs April DeBoer and Jayne Rowse
(plaintiffs) challenge a November 2004
voter-approved amendment to the Michigan
Constitution that prohibits same-sex marriage
(hereinafter the Michigan Marriage Amendment or
MMA), Mich. Const. Art. I, 25. The Michigan
Marriage Amendment states: To secure and preserve
the benefits of marriage for our society and for future
generations of children, the union of one man and one
woman in marriage shall be the only agreement
recognized as a marriage or similar union for any
purpose. Plaintiffs maintain that the MMA violates
the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States
Constitution and they seek to enjoin state and county
officials from enforcing the provision and its
implementing statutes.1
After reviewing the evidence presented at the trial,
including the testimony of various expert witnesses,
the exhibits, and stipulations, and after considering all
of the legal issues involved, the Court concludes that
the MMA is unconstitutional and will enjoin its
enforcement.
The defendants in this matter are Michigan Governor Richard

Snyder and Attorney General Bill Schuette (collectively the state
defendants). Plaintiffs later added former Oakland County Clerk,
Bill Bullard, Jr. as a party defendant, who was eventually replaced
by his successor in office, defendant Lisa Brown. Although Brown
is named as a defendant in this matter, she has adopted plaintiffs
legal position challenging the MMA.
App. 105
I.
Background
The underlying facts of this case are

straightforward. Plaintiffs are an unmarried same-sex
couple residing in Hazel Park, Michigan. They have
lived together for the past eight years and jointly own
their residence. Both are state-licensed foster parents.
DeBoer is a nurse in the neonatal intensive care unit at
Hutzel Hospital and Rowse is an emergency room
nurse at Henry Ford Hospital, both located in Detroit.
In November 2009, Rowse, as a single person, legally
adopted child N. In October 2011, also as a single
person, she legally adopted child J. In April 2011,
DeBoer, as a single person, adopted child R. Unable to
jointly adopt the three children, plaintiffs initially filed
the instant action against the state defendants
requesting that the Court enjoin them from enforcing
section 24 of the Michigan Adoption Code (hereinafter
section 24), Mich. Comp. Laws 710.24, which
restricts adoptions to either single persons or married
couples. Plaintiffs claimed that section 24 violates the
Equal Protection Clause because it impermissibly
discriminates against unmarried couples. In response,
the state defendants moved to dismiss the complaint on
the grounds that, among other things, plaintiffs lacked
standing to bring suit.
The Court held a hearing on the state defendants
motion and expressed reservations that plaintiffs did
not possess the requisite standing to challenge section
24. The Court noted that while plaintiffs made a
colorable claim that they and their children were, in
fact, injured by their ineligibility to petition for joint
adoption, this injury was not traceable to defendants
enforcement of section 24. Rather, plaintiffs could not
App. 106
jointly adopt their children because they were not
married, and any legal form of same-sex union is
prohibited by the MMA. The Court concluded the
hearing by inviting plaintiffs to seek leave to amend
their complaint to include a challenge to the MMA.
Plaintiffs accepted the Courts invitation and sought
leave to amend their complaint, which the Court
granted over defendants objection. The amended
complaint included a second cause of action challenging
the validity of the MMA on both due process and equal
protection grounds. The state defendants then renewed
their motion, this time to dismiss the amended
complaint. The Court held the matter in abeyance and
then denied the motion after the United States
Supreme Court issued its decision in United States v.
Windsor, 133 S. Ct. 2675 (2013), invalidating section 3
of the Defense of Marriage Act of 1996 (DOMA).
Thereafter, the parties both filed motions for
summary judgment. The state defendants, in support
of their argument that the MMA has legitimate
purposes, offered the following reasons for excluding
same-sex couples from Michigans definition of
marriage: (1) providing children with biologically
connected role models of both genders that are
necessary to foster healthy psychological development;
(2) avoiding the unintended consequences that might
result from redefining marriage; (3) upholding tradition
and morality; and (4) promoting the transition of
naturally procreative relationships into stable unions.
Assuming that the appropriate level of scrutiny in this
case is rational basis review, the Court concluded that
plaintiffs raised triable issues of fact regarding
whether the proffered rationales for the MMA serve a
App. 107
legitimate state interest, but that plaintiffs had not
demonstrated their entitlement to summary judgment.
As a result, the Court scheduled the matter for trial.
II.
Trial Proceedings, Summary of Testimony,

and Findings of Fact
In setting the case for trial, the Court directed the

parties to address a narrow legal issue: whether the
MMA survives rational basis review. In other words,
does the MMA proscribe conduct in a manner that is
rationally related to any conceivable legitimate
governmental purpose.
Plaintiffs called psychologist David Brodzinsky as
their first witness. He testified that decades of social
science research studies indicate that there is no
discernible difference in parenting competence between
lesbian and gay adults and their heterosexual
counterparts. Pls. Ex. 30 at 3-4. Nor is there any
discernible difference in the developmental outcomes of
children raised by same-sex parents as compared to
those children raised by heterosexual parents. Id.
Brodzinsky stressed that the primary factors
influencing childhood development are:
[the] quality of parent-child relationships;
quality of the relationships between the parents
. . . [t]he characteristics of the parent, the styles
that they adopt, parental warmth and
nurturance [sic], emotional sensitivity. The
ability to employ age appropriate rules and
structure for the child. And the kinds of
educational opportunities that children are
afforded is important, as well as the resources
that are provided for the child, not only in the
App. 108
family itself, but the resources that, from the
outside, that impact the family and the child in
particular. And of course, the mental health of
. . . the parents.
Brodzinsky, Tr. 2/25/14 pp. 69-70. Contrary to the state
defendants position, Brodzinsky testified that there is
no body of research supporting the belief that children
require parent role models of both genders to be
healthy and well adjusted. Id. at 78-79. What matters
is the quality of parenting thats being offered to the
child. Id. at 78. Brodzinsky also noted that same-sex
parenting has become a fact of life for many American
children and that legally recognizing same-sex
marriages would benefit these children by promoting
family stability and investing these families with
social capital. Id. at 136.
Brodzinsky also addressed the criticism that most
of the social science research studies informing his
conclusions are statistically unreliable because they
utilized small and self-selecting sample populations,
i.e., convenience studies. In addressing this criticism,
Brodzinsky indicated that researchers in the fields of
child development and family psychology commonly use
convenience studies as a methodological tool for
studying issues of interest because they, in contrast to
large-scale studies, offer the opportunity for a more
detailed analysis of the circumstances affecting
children and their parents. While Brodzinsky
acknowledged that small-scale convenience samples
have their limitations, he highlighted that researchers
studying same-sex households have verified the
conclusions of their convenience studies by consistently
replicating the results of these studies using different
App. 109
research strategies and sample populations. These
studies, approximately 150 in number, have repeatedly
demonstrated that there is no scientific basis to
conclude that children raised by same-sex parents fare
worse than those raised by heterosexual parents.
The Court finds Brodzinskys testimony to be fully
credible and gives it considerable weight. He testified
convincingly that childrens outcomes depend on the
factors he cited, and not on their parents gender and
not on whether they are raised by heterosexual or
same-sex couples. The quality of a persons
child-rearing skills is unrelated to the persons gender
or sexual orientation. Brodzinskys credibility was not
in any way lessened by the fact that the social science
research upon which his opinions are based come
largely from so-called convenience studies. As
Brodzinsky and others testified, such studies are the
bread and butter of many areas of social science
research, and the results of such studies are valid and
reliable if, as occurred here, they are consistently
replicated by different researchers studying different
sample groups.
Sociologist Michael Rosenfeld supported this
conclusion. In his 2010 study entitled Nontraditional
Families and Childhood Progress Through School,
Rosenfeld gathered data from the 2000 United States
Census to examine whether grade school children of
same-sex couples progress through school at the same
rate as children raised by heterosexual couples.
Controlling for parental income, education levels and
family stability, Rosenfeld found that children raised
by same-sex couples progress through school at almost
the same rate as children raised by heterosexual
App. 110
married couples. Regarding couple stability, Rosenfeld
testified that cohabiting same-sex couples reported
higher break-up rates than heterosexual married
couples during the years preceding any legally
recognized form of same-sex union (in the 1980s and
1990s). However, studies measuring couple stability
during the era of legally recognized same-sex unions
demonstrated that longevity rates among cohabiting
same-sex couples was on par with heterosexual
married couples. Referring to his ongoing longitudinal
study2 entitled How Couples Meet and Stay Together,
Rosenfeld confirmed that same-sex couples in legally
recognized unions exhibit the same couple stability
rates as their heterosexual married counterparts.
Although he testified that the social science
community has formed a strong consensus regarding
the comparable outcomes of children raised by
same-sex couples, Rosenfeld recognized that a small
number of detractors have criticized his research. In
particular, Rosenfeld referred to a 2013 study
conducted by family economists Douglas Allen,
Catherine Pakaluk and Joseph Price that critiqued the
statistical methodology he used in his 2010 study.
Allen, Palaluk and Price contended that Rosenfelds
results were inaccurate because he excluded children
from his sample population who should have been
included. Rosenfeld responded to this argument at trial
by showing that Allen, Pakaluk and Price had
overstated the statistical uncertainty of his results.
Through demonstrative exhibits, Rosenfeld showed
that the results of his study were not inaccurate at all.
2
A longitudinal study is one that measures specific indicators over

the course of time.
App. 111
After controlling for parental education and income
levels, Rosenfelds data indicated that the children of
heterosexual married couples are just as likely to be
held back in school as are the children of same-sex
couples. This finding led him to conclude that in terms
of school progress there is no significant difference
between the children of same-sex couples and the
children of heterosexual married couples.3 Rosenfeld,
Tr. 2/25/14 p. 82.
The Court finds Rosenfelds testimony to be highly
credible and gives it great weight. His research
convincingly shows that children of same-sex couples
do just as well in school as the children of heterosexual
married couples, and that same-sex couples are just as
stable as heterosexual couples. The Court notes that
the testimony of Brodzinsky and Rosenfeld is in line
with a strong no differences consensus within the
professional associations in the psychological and
sociological fields. Brodzinsky made the following
statement in his expert witness report, which
defendants did not challenge:
Every major professional organization in this
country whose focus is the health and well-being
of children and families has reviewed the data
on outcomes for children raised by lesbian and
gay couples, including the methods by which the
data were collected, and have concluded that
these children are not disadvantaged compared
Rosenfelds study showed that children raised by heterosexual

married couples are less than one percent less likely to be held
back in school than children raised by same-sex couples. According
to Rosenfeld, this minuscule difference is statistically insignificant.
App. 112
to children raised in heterosexual parent
households. Organizations expressing support
for parenting, adoption, and/or fostering by
lesbian and gay couples include (but are not
limited to): American Medical Association,
American Academy of Pediatrics, American
Psychiatric Association, American Academy of
Child and Adolescent Psychiatry, American
Psychoanalytic Association, American
Psychological Association, Child Welfare League
of America, National Association of Social
Workers, and the Donaldson Adoption Institute.
Pls. Ex. 30 at 21. In fact, the 2004 Council of
Representatives of the American Psychological
Association (APA) unanimously voted in favor of
issuing a position statement that research has shown
that the adjustment, development, and psychological
well-being of children is unrelated to parental sexual
orientation and that the children of lesbian and gay
parents are as likely as those of heterosexual parents
to flourish. Pls. Ex. 111 at 2.
Law professor Vivek Sankaran testified that the
MMA destabilizes children raised by same-sex couples
in the event the sole legal parent dies or becomes
incapacitated. Sankaran stated that in such
circumstances the non-legal parent could petition for
guardianship over the child, but that these proceedings
are burdensome and often lack finality because
Michigan courts are required to review a non-legal
parents guardianship status every year until the child
turns 18. Moreover, once the non-legal parent
commences a guardianship proceeding there is no
guarantee that the court will either award
App. 113
guardianship to that parent or eventually permit him
or her to adopt the child. Michigan law allows any
individual possessing an interest in the childs welfare
to file a petition removing the guardian if the removal
would serve the childs best interests. Sankaran
testified that an interested person may include a
distant relative of the child, a neighbor, teacher, or
anyone who claims to have an interest in the child.
Should the non-legal parent encounter any delay in
pursuing the guardianship, there is also the prospect
that the Michigan Department of Human Services
(DHS) could initiate a child neglect investigation
because the child would be left for at least some period
of time without a legal guardian. Sankaran, Tr. 2/26/14
pp. 120-121. In this event, DHS is authorized to file a
petition in juvenile court to remove the child from the
custody of the non-legal parent and place the child in
foster care. At the removal proceeding, the non-legal
parent would not be a party to the proceeding nor
would the juvenile court appoint a lawyer to represent
the non-legal parents interests. According to
Sankaran, the non-legal parent would have to become
a licensed foster parent in order to obtain custody of
the child, and even then the juvenile court is not
required to place the child with the non-legal parent.
These destabilizing consequences could have far
reaching effects throughout the state, as demographer
Gary Gates testified that currently there are
approximately 14,598 same-sex couples living in
Michigan and that approximately 2,650 such couples
are raising 5,300 children. Gates, Tr. 2/27/14 p. 29.
The Court finds Sankarans testimony to be fully
credible and gives it great weight. He testified
App. 114
convincingly 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. The
testimony of Gates, whom the Court also found to be a
highly credible witness, showed the magnitude of this
effect by noting that 5,300 children in Michigan are
currently being raised by same-sex couples.
Plaintiffs also presented expert testimony that the
MMA erodes the benefits that marriage has historically
promoted. Historian Nancy Cott testified that, from the
founding of the colonies through the early years of the
republic, civil authorities regulated marriage to foster
stable households, legitimate children and designate
providers to care for dependents who otherwise would
become wards of the state. During the twentieth
century, the state and federal governments furthered
these goals by granting many benefits to married
couples. For instance, Social Security survivor benefits
and government sponsored healthcare benefits are
available to legally married couples, but not unmarried
partners. Yet, by effectively foreclosing same-sex
couples from obtaining these benefits, the MMA
undermines the very aim of one of the central historical
bases for civil marriage, namely, family stability.
Cott further attested that there is no historical
precedent for prohibiting marriages that are incapable
of creating biological offspring. After surveying the
domestic legal history of every state in the country,
Cott indicated that none of them have ever required a
couple to possess the capacity or inclination to
App. 115
procreate as a prerequisite to marriage. Cott, Tr.
2/28/14 p. 14. She highlighted that sterility or
infertility have never constituted legal grounds for the
annulment of a marriage. Nor have states prohibited
post-menopausal women or sterile men from marrying.
Examining the historical grounds for divorce, Cott
noted that the inability to have a child has not been a
ground of divorce in any state, including Michigan. Id.
at 15. The Court finds Cott to be highly credible and
accords her testimony great weight.
Even today, the State of Michigan does not make
fertility or the desire to have children a prerequisite for
obtaining a marriage license. As defendant Lisa Brown
testified, Michigan county clerks are not authorized to
consider a couples stability, criminal record, ability to
procreate, parenting skills, or the potential future
outcomes of their children before issuing a marriage
license. Brown, Tr. 3/3/14 pp. 34, 38-40. County clerks
may only evaluate the age and residency of the license
applicants and whether either of the applicants is
currently married.4 Id. at 32, 35.
Under Michigan law, the statutory requirements applicable to

those wishing to marry are minimal. Applicants must (1) be of the
opposite sex; (2) consent to be married; (3) not be directly related
to one another; (4) not already be married to another person; (5) be
at least 18 years old (or at least 16 years old with the consent of a
parent or guardian); and (6) pay $20 for a license from the clerk of
the county where either party resides or where the marriage will
be performed. See Mich. Comp. Laws 551.1, 551.2, 551.3, 551.4,
551.5, 551.101, 551.103. Once a license is issued, the marriage
must be solemnized before two witnesses and a person with
statutory authority. See Mich. Comp. Laws 551.7, 551.9.
App. 116
The Court finds Brown to be highly credible and
gives her testimony great weight. She testified
convincingly that county clerks in Michigan must issue
a marriage license to any couple who meet the sparse
statutory requirements concerning age, residency, and
single status. Clerks do not inquire about whether
applicants intend to raise children, whether they
possess good parenting skills, or whether they have a
criminal record.
In defense of their asserted justifications for the
MMA, the state defendants first called sociologist Mark
Regnerus. Regneruss testimony focused on the results
of his 2012 New Family Structures Study (NFSS),
a survey data collection project that was formulated to
assess adult outcomes of children who reported that
one of their parents had been in a romantic
relationship with someone of the same-sex during the
respondents childhood years. Of the 15,000
participants ranging in age from 18 to 39, 248 of them
reported that one of their parents had been in such a
romantic relationship. From this sample, 175 reported
that their mother had a same-sex romantic relationship
while 73 reported that their father had been
romantically involved with another man. Regnerus
then compared the adult outcomes of these two subgroups with another set of participants who were
raised by intact biological parents. The outcomes of
these groups were significantly different.
Regnerus found that children who reported that
their mothers had a same-sex relationship were less
likely to pursue an education or obtain full-time
employment and more likely to be unemployed and
receiving public assistance, more likely to experience
App. 117
sexual assault, more likely to cheat on their partners or
spouses and more likely to have been arrested at some
point in their past. Similarly, Regnerus discovered that
children who reported that their fathers had a
same-sex relationship were more likely to have been
arrested, more likely to plead guilty to non-minor
offenses and more likely to have numerous sexual
partners.
Although Regnerus touted the NFSS as one of the
few studies to use a large representative pool of
participants drawn from a random population-based
sample, other sociological and demographic experts,
including Rosenfeld and Gates, heavily criticized the
study on several grounds. First, it failed to measure the
adult outcomes of children who were actually raised in
same-sex households. This is because the participants
household histories revealed that many parental
same-sex romantic relationships lasted for only brief
periods of time. And many of the participants never
lived in a same-sex household at all. Regnerus reported
that just over half (90) of the 175 respondents whose
mother had a lesbian relationship reported that they
did not live with both their mother and her same-sex
partner at the same time. Id. at 11. Second, many
critics voiced their concern that the NFSS made an
unfair comparison between children raised by parents
who happened to engage in some form of same-sex
relationship and those raised by intact biological
families. This is because almost all of the children in
the former group were the offspring of a failed prior
heterosexual union, which produced a significant
measure of household instability and parental
relationship fluctuation.
App. 118
Even Regnerus recognized the limitations of the
NFSS. In his expert report, Regnerus acknowledged
that any suboptimal outcomes may not be due to the
sexual orientation of the parent and that [t]he exact
source of group differences are unknown. Defs. Ex. 28
at 5. Moreover, of the only two participants who
reported living with their mother and her same-sex
partner for their entire childhood, Regnerus found each
of them to be comparatively well-adjusted on most
developmental and contemporary outcomes. Id. at 11.
Nonetheless, Regnerus testified that there is no
conclusive evidence that growing up in households
wherein parents are in (or have been in) same-sex
relationships does not adversely affect child outcomes.
Id. at 16.
The Court finds Regneruss testimony entirely
unbelievable and not worthy of serious consideration.
The evidence adduced at trial demonstrated that his
2012 study was hastily concocted at the behest of a
third-party funder, which found it essential that the
necessary data be gathered to settle the question in the
forum of public debate about what kinds of family
arrangement are best for society and which was
confident that the traditional understanding of
marriage will be vindicated by this study. See Pls.
Motion in limine to Exclude Testimony of Mark
Regnerus, Ex. 9. In the funders view, the future of the
institution of marriage at this moment is very
uncertain and proper research was needed to counter
the many studies showing no differences in child
outcomes. Id. The funder also stated that this is a
project where time is of the essence. Id. Time was of
the essence at the time of the funders comments in
April 2011, and when Dr. Regnerus published the
App. 119
NFSS in 2012, because decisions such as Perry v.
Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010),
and Windsor v. United States, 833 F. Supp. 2d 394
(S.D.N.Y. 2012), were threatening the funders concept
of the institution of marriage.
While Regnerus maintained that the funding source
did not affect his impartiality as a researcher, the
Court finds this testimony unbelievable. The funder
clearly wanted a certain result, and Regnerus obliged.
Additionally, the NFSS is flawed on its face, as it
purported to study a large, random sample of
American young adults (ages 18-39) who were raised in
different types of family arrangements (emphasis
added), but in fact it did not study this at all, as
Regnerus equated being raised by a same-sex couple
with having ever lived with a parent who had a
romantic relationship with someone of the same sex
for any length of time. Whatever Regnerus may have
found in this study, he certainly cannot purport to
have undertaken a scholarly research effort to compare
the outcomes of children raised by same-sex couples
with those of children raised by heterosexual couples.
It is no wonder that the NFSS has been widely and
severely criticized by other scholars, and that
Regneruss own sociology department at the University
of Texas has distanced itself from the NFSS in
particular and Dr. Regneruss views in general and
reaffirmed the aforementioned APA position statement.
In reviewing the many research studies that have
measured the outcomes of children raised by same-sex
couples, family studies professor Loren Marks and
economist Joseph Price questioned the validity of these
studies in view of their statistical methodologies. Both
App. 120
witnesses testified that the research studies of
same-sex families often have relied upon small
self-selecting sample sizes, rarely compared child
outcomes to children raised by intact heterosexual
couples, and failed to use hard outcome variables that
are easily to measured, i.e., grade retention, criminality
or unemployment.
In his testimony, Marks lauded a 1996 study
performed by Australian researcher Sotirios
Sarantakos entitled Children in Three Contexts:
Family, Education and Social Development. That
study compared 58 children of heterosexual married
parents, 58 children of heterosexual cohabiting couples,
and 58 children living with same-sex couples across a
wide spectrum of teacher-reported scholastic measures.
Defs. Ex. 25 at 16, 38. Marks testified that after
controlling for, among other things, parental income
and education levels, the study found significant
differences between children raised by intact
heterosexual married parents and those raised by
same-sex parents. Sarantakos concluded, children of
married [heterosexual] couples are more likely to do
well at school in academic and social terms, than
children of cohabiting and homosexual couples. Id. at
17. However, on cross-examination, Marks conceded
that the studys probative value was limited by the fact
that most of the 58 children raised by same-sex couples
experienced parental divorce at some earlier time in
their lives. Marks, Tr. 3/5/14 pp. 75-76. By comparison,
none of the children raised by heterosexual married
parents experienced parental separation. Id. at 76. At
several points in the study, even Sarantakos
acknowledged that this discrepancy in family stability
App. 121
could have accounted for the differing levels of
achievement between these groups. Id. at 76-78.
Price cited to his 2012 article, authored with
Douglas Allen and Catherine Pakaluk, in evaluating
the statistical methodology that Rosenfeld used in his
2010 study. Price opined that the Rosenfeld study was
flawed because the results were statistically uncertain
and the sample population was too small to observe
statistically significant differences between children
raised by same-sex couples and those raised by
heterosexual couples. Price also stated that Rosenfelds
study was problematic because it controlled for family
stability by restricting an analysis of family structure
to families that have [not] experience[d] changes for the
previous five years, which eliminates one of the
important channels through which the effect of family
structure is likely to operate. Defs. Ex. 27 at 28. By
expanding Rosenfelds sample population and
controlling for certain factors such as family stability,
Prices study found that children raised by same-sex
couples have noticeably worse outcomes than children
raised by heterosexual couples. Ultimately, both Marks
and Price concluded that current social science
research has not definitively demonstrated that there
is no difference between children raised by same-sex
couples and those children raised by their heterosexual
counterparts. Marks, Tr. 3/5/14 p. 24; Price, Tr. 3/5/14
pp. 54-56.
Economist Douglas Allen testified about his own
study using data from the 2006 Canadian Census,
which compared the high school graduation rates of
young adults (ages 17-22) raised by heterosexual
married couples and those raised by same-sex couples.
App. 122
Without controlling for any particular factors, Allen
found that 72 percent of children raised in heterosexual
married households graduated from high school as
opposed to 60 percent of those raised in gay parent
homes and 52 percent for those raised in lesbian
homes. Defs. Ex. 26 at 36. On cross-examination,
Allen conceded that many of the young adults who
were living in same-sex households in 2006 had
previously lived in heterosexual households where their
parents had either divorced or separated. Id. at 49;
Allen, Tr. 3/6/14 pp. 119-120. Similarly, because the
study relied on a snap shot of the sample population
during the 2006 Canadian Census, Allen could not
gauge how the young adult subjects progressed through
school during their childhood years or when their
academic progress began to decline. Allen, Tr. 3/6/14
p. 120. One of the major limitations of Allens study
was that he could not discern whether a particular
young adults academic decline coincided with a
separation in the household. Id. at 120-121. This led
Allen to acknowledge in a footnote that his paper does
not study the effect of growing up in a same-sex
household, but rather examines the association of
school performance for those children who lived with
same-sex parents in 2006. Defs. Ex. 15 at 4 (emphasis
added). Moreover, when Allen controlled for parental
education, marital status and five years of residential
stability, he discovered that there was no statistically
significant difference in graduation rates. Allen, Tr.
3/6/14 pp/ 128-129.
The Court was unable to accord the testimony of
Marks, Price, and Allen any significant weight. Markss
testimony is largely unbelievable. He characterized the
overwhelming consensus among sociologists and
App. 123
psychologists who endorse the no differences
viewpoint as group think, by which he said he meant
a politically correct viewpoint that the majority has
accepted without subjecting it to proper scientific
scrutiny. Marks undertook an excruciatingly detailed
examination of the 59 published studies cited by the
APA in support of its 2005 Brief on Lesbian and Gay
Parenting, in which it concluded that [n]ot a single
study has found children of lesbian or gay parents to be
disadvantaged in any significant respect relative to
children of heterosexual parents. Marks, as well as
Price and Allen, faulted many of these studies for their
small sample sizes, the non-random methods used to
obtain subjects, and the fact that some lacked
heterosexual comparison groups, among other
criticisms. Marks, Price and Allen all failed to concede
the importance of convenience sampling as a social
science research tool. They, along with Regnerus,
clearly represent a fringe viewpoint that is rejected by
the vast majority of their colleagues across a variety of
social science fields. The most that can be said of these
witnesses testimony is that the no differences
consensus has not been proven with scientific certainty,
not that there is any credible evidence showing that
children raised by same-sex couples fare worse than
those raised by heterosexual couples.
III.
Conclusions of Law
A. Legal Standards
The Court finds that the MMA impermissibly

discriminates against same-sex couples in violation of
the Equal Protection Clause because the provision does
not advance any conceivable legitimate state interest.
In light of this determination, the Court finds it
App. 124
unnecessary to address whether the MMA burdens the
exercise of a fundamental right under the Due Process
Clause.5 See Lyng v. Northwest Indian Cemetery
Protective Assn, 485 U.S. 439, 445 (1988) (A
fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of
deciding them.)
The Equal Protection Clause forbids a state from
denying to any person within its jurisdiction the equal
protection of the laws, U.S. Const. amend. XIV, 1,
and promotes the ideal that all persons similarly
situated should be treated alike. Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432, 439 (1985). On the
other hand, states are empowered to perform many of
the vital functions of modern government, Natl Fedn
of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012),
which necessarily involves adopting regulations which
distinguish between certain groups within society. See
Romer v. Evans, 517 U.S. 620, 631 (1996). A balance
must therefore be struck between equal protection
principles and the practicalities of governance.
To this end, the United States Supreme Court has
fashioned a three-tiered framework for evaluating
5
The Court notes, however, that the Supreme Court has

repeatedly recognized marriage as a fundamental right. See
Turner v. Safley, 482 U.S. 78, 95 (1987) (stating that the decision
to marry is a fundamental right); Cleveland Bd. of Educ. v. La
Fleur, 414 U.S. 632, 639-640 (1974) (stating that freedom of
personal choice in matters of marriage and family life is one of the
liberties protected by the Due Process Clause of the Fourteenth
Amendment). Loving v. Virginia, 388 U.S. 1, 12 (1967) (same);
Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (same).
App. 125
whether a provision of law offends the Equal Protection
Clause. The most rigorous tier is strict scrutiny,
which is reserved for laws that discriminate against
suspect classes such as racial, ethnic or religious
minorities. See Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 227 (1995) (applying strict scrutiny to racial
classification); Korematsu v. United States, 323 U.S.
214, 216 (1944) (applying strict scrutiny to
classification based upon national origin). A more
relaxed form of inquiry is intermediate or
heightened scrutiny, which courts have applied to
laws that discriminate against groups on the basis of
gender, alienage or illegitimacy, also known as quasisuspect classes. See Clark v. Jeter, 486 U.S. 456, 461
(1988) (applying intermediate scrutiny to classification
based upon illegitimacy); Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 723-724 (1982) (applying
intermediate scrutiny to gender classification). The
least exacting tier is rational basis review, which
assesses the propriety of legislation that does not
implicate either suspect or quasi-suspect classes.
In this case, plaintiffs moved to bifurcate the trial in
the event the Court decided to hear testimony about
whether classifications based on sexual orientation are
deserving of heightened scrutiny. The Court granted
the motion, although governing Sixth Circuit precedent
does not consider gay, lesbian, bisexual or transgender
persons to constitute suspect or quasi-suspect classes.
See Davis v. Prison Health Servs., 679 F.3d 433, 438
(6th Cir. 2012); Scarborough v. Morgan County Bd. of
Educ., 470 F.3d 250, 261 (6th Cir. 2006). While some
federal courts have held that a more exacting level of
scrutiny should be applied in reviewing the
constitutionality of same-sex marriage bans, see
App. 126
Windsor v. United States, 699 F.3d 169, 185 (2d Cir.
2012); Massachusetts v. United States Dept of Health
and Human Servs., 682 F.3d 1, 11 (1st Cir. 2012), the
Court need not decide the issue because the MMA does
not survive even the most deferential level of scrutiny,
i.e., rational basis review.
Under this standard, the Court must determine
whether the MMA proscribes conduct in a manner that
is rationally related to the achievement of a legitimate
governmental purpose. See Vance v. Bradley, 440 U.S.
93, 97 (1979); Guzman v. United States Dept of
Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012).
Courts will not invalidate a provision of law on equal
protection grounds unless [its] varying treatment of
different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes
that [a reviewing court] can only conclude that the
governments actions were irrational. Kimel v. Florida
Bd. of Regents, 528 U.S. 62, 84 (2000). The
government [also] has no obligation to produce
evidence to support the rationality of its . . . [imposed]
classifications and may rely entirely on rational
speculation unsupported by any evidence or empirical
data. Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir.
2000). Rather, it is incumbent upon plaintiffs to refute
any reasonably conceivable state of facts that could
provide a rational basis for the classification. FCC v.
Beach Commcns, Inc., 508 U.S. 307, 313 (1993).
B. Asserted Reasons for the MMA
Largely in keeping with the justifications offered in
their summary judgment motion, at trial, the state
defendants asserted that the MMA serves the following
legitimate state interests: (1) providing an optimal
App. 127
environment for child rearing; (2) proceeding with
caution before altering the traditional definition of
marriage; and (3) upholding tradition and morality.
Additionally, the state defendants consistently asserted
that defining marriage is within the exclusive purview
of the states police power. None of these proffered
reasons provides a rational basis for adopting the
amendment.
1. Optimal Environment
The state defendants argued that the citizens of
Michigan adopted the MMA on the premise that
heterosexual married couples provide the optimal
environment for raising children. The Court rejects this
rationale for several reasons.
First, the evidence adduced at trial disproved this
premise. Rosenfelds study shows that children raised
by same-sex couples progress at almost the same rate
through school as children raised by heterosexual
married couples. In fact, the difference between the two
groups is nearly immeasurable. Brodzinsky similarly
testified that approximately 150 sociological and
psychological studies of children raised by same-sex
couples have repeatedly confirmed Rosenfelds findings
that there is simply no scientific basis to conclude that
children raised in same-sex households fare worse than
those raised in heterosexual households. Brodzinsky
also testified that parental gender plays a limited role,
if any, in producing well-adjusted children. Brodzinsky,
Tr. 2/25/14 p. 78. He stated that:
Its not the gender of the parent thats the key.
Its the quality of parenting thats being offered
by whoever is there, husband or wife, two
App. 128
women, two men, a single parent, as long as the
factors that we listed . . . are present: good
mental health, good parent-child relationships,
what we call an authoritative parenting style,
which is warmth, stimulation, structure, and the
availability of resources. Then were going to
have a child who is much more likely to be
healthy.
Id. at 78-79.
In response, state defendants cited a small number
of outlier studies in support of the optimal
child-rearing rationale. In an effort to show that
children raised by same-sex couples fare worse than
those raised by heterosexual couples, the state
defendants relied principally upon Regneruss NFSS
study and Allens 2006 Canadian Census study, but
these efforts were unavailing. The common flaw of the
Regnerus and Allen studies was the failure to account
for the fact that many of the subjects who were raised
in same-sex households experienced prior incidents of
family instability (e.g., divorce or separation) or were
initially placed in the foster care system. Both
researchers acknowledged that poor school
performance could result from a childs exposure to
divorce or parental separation. Regneruss NFSS study
also suffered from another defect in that it failed to
measure the adult outcomes of children who were
actually raised in same-sex households. In short, the
isolated studies cited by the state defendants do not
support the argument that children raised by
heterosexual couples have better outcomes than
children raised by same-sex couples. To the contrary,
App. 129
the overwhelming weight of the scientific evidence
supports the no differences viewpoint.
Second, the optimal child-rearing justification for
the MMA is belied by the states own marriage
requirements. The prerequisites for obtaining a
marriage license under Michigan law do not include the
ability to have children, a requirement to raise them in
any particular family structure, or the prospect of
achieving certain outcomes for children. By the same
token, the state does not allow for the annulment of a
marriage once a couple discovers it cannot conceive, or
if the family structure changes, or if the couples
children do poorly in school.
Third, contrary to the state defendants contentions,
the MMA actually fosters the potential for childhood
destabilization. For instance, in this particular case
should either of the plaintiffs die or become
incapacitated, the surviving non-legal parent would
have no authority under Michigan law to make legal
decisions on behalf of the surviving children without
resorting to a prolonged and complicated guardianship
proceeding. And in the event that a state court were to
award guardianship of the surviving children to the
non-legal parent, the guardianship would have to be
renewed annually and would remain susceptible to the
challenge of an interested party at any time. This, as
Brodzinsky testified, places such children in a legally
precarious situation and deprives them of social
capital.
Fourth, the state defendants position suffers from
a glaring inconsistency. Even assuming that children
raised by same-sex couples fare worse than children
raised by heterosexual married couples, the state
App. 130
defendants fail to explain why Michigan law does not
similarly exclude certain classes of heterosexual
couples from marrying whose children persistently
have had sub-optimal developmental outcomes.
According to Rosenfelds study, children raised by
suburban residents academically outperformed those
children raised by rural and urban residents. Likewise,
middle class and poor families are sub-optimal
compared to well-off families, and couples with less
formal education are sub-optimal compared to couples
with more formal education. Pls. Ex. 31 at 5. A childs
racial background is another predictive indicator of
future success, as the study showed that the
probability of making good progress through school is
greater in the U.S. for children of Asian descent than
for children of all other racial groups. Id. Taking the
state defendants position to its logical conclusion, the
empirical evidence at hand should require that only
rich, educated, suburban-dwelling, married Asians may
marry, to the exclusion of all other heterosexual
couples. Obviously the state has not adopted this policy
and with good reason. The absurdity of such a
requirement is self-evident. Optimal academic
outcomes for children cannot logically dictate which
groups may marry.
Finally, the Court rejects the optimal environment
justification because that goal is simply not advanced
by prohibiting same-sex couples from marrying. As
Gates testified, there are thousands of same-sex
couples currently raising thousands of children in
Michigan, and these numbers have steadily increased
over the past 20 years. Prohibiting gays and lesbians
from marrying does not stop them from forming
families and raising children. Nor does prohibiting
App. 131
same-sex marriage increase the number of
heterosexual marriages or the number of children
raised by heterosexual parents. There is, in short, no
logical connection between banning same-sex marriage
and providing children with an optimal environment
or achieving optimal outcomes.
2. Proceeding With Caution
Throughout the trial, the state defendants asserted
that Michigan has a legitimate interest in proceeding
with caution before altering the traditional definition
of marriage. The state defendants experts all
concluded that it is too soon to understand the societal
impact of allowing same-sex couples to marry because
further study is required. This wait-and-see
justification is not persuasive.
Legislatures and regulatory agencies often cite to
such reasoning when postponing decisions related to
issues of public importance, as matters of public policy
are resolved with more candor and insight when they
are decided after an open debate based on sufficient
facts. This is why federal administrative agencies must
provide the public with a notice and comment period
before exercising their rule-making authority. Hearings
must be held, studies must be conducted, and
legislators must deliberate. These things necessarily
take time. But the calculus is fundamentally altered
when constitutional rights are implicated because any
deprivation of constitutional rights calls for prompt
rectification. Watson v. Memphis, 373 U.S. 526,
532-533 (1963). The basic guarantees of our
Constitution are warrants for the here and now and,
unless there is an overwhelmingly compelling reason,
they are to be promptly fulfilled. Id. The state may not
App. 132
shield itself with the wait-and-see approach and sit
idly while social science research takes its plodding and
deliberative course. Were the Court to accept this
position, it would turn the rational basis analysis into
a toothless and perfunctory review because the state
can plead an interest in proceeding with caution in
almost any setting. Kitchen v. Herbert, No. 13-217,
2013 U.S. Dist. LEXIS 179331, at *77 (D. Utah Dec. 20,
2013). Rather, the state must have some rationale
beyond merely asserting that there is no conclusive
evidence to decide an issue one way or another. See
Perry, 704 F. Supp. 2d at 972 (quoting Romer for the
proposition that [e]ven under the most deferential
standard of review . . . the court must insist on
knowing the relation between the classification adopted
and the object to be attained.). Since the wait-andsee approach fails to meet this most basic threshold it
cannot pass the rational basis test.
3. Tradition and Morality
Implicit in the wait-and-see approach is the state
defendants underlying contention that preserving
traditional marriage is a legitimate goal in and of itself.
The difficulty with this justification is two-fold. First,
the Supreme Court has held that tradition alone does
not satisfy rational basis review. See Heller v. Doe, 509
U.S. 312, 326 (1993) (stating that the [a]ncient lineage
of a legal concept does not give it immunity from attack
for lacking a rational basis.). Second, traditional
notions of marriage are often enmeshed with the moral
disapproval of redefining marriage to encompass
same-sex relationships. On this point, many federal
courts have noted that moral disapproval is not a
sufficient rationale for upholding a provision of law on
App. 133
equal protection grounds. See Massachusetts v. U.S.
Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st
Cir. 2012) (invalidating section 3 of the Defense of
Marriage Act because the statute expressed a moral
disapproval of homosexuality); De Leon v. Perry, No.
13-0982, 2014 U.S. Dist. LEXIS 26236, at *48-49 (W.D.
Tex. Feb. 26, 2014) (rejecting morality as a
justification); Bishop v. United States, No. 04-848, 2014
U.S. Dist. LEXIS 4374, at *101 (N.D. Okla. Jan. 14,
2014) (stating that upholding one particular moral
definition of marriage . . . is not a permissible
justification.); Kitchen, 2013 U.S. Dist. LEXIS 179331,
at *79 (same).
In delivering their opening and closing remarks,
plaintiffs attorneys contended that the voters who
approved the MMA were motivated by animus towards
lesbian, gay, bisexual and transgender individuals.
Since the Court is unable discern the intentions of each
individual voter who cast their ballot in favor of the
measure, it is cannot ascribe such motivations to the
approximately 2.7 million voters who approved the
measure. Many Michigan residents have religious
convictions whose principles govern the conduct of their
daily lives and inform their own viewpoints about
marriage. Nonetheless, these views cannot strip other
citizens of the guarantees of equal protection under the
law. The same Constitution that protects the free
exercise of ones faith in deciding whether to solemnize
certain marriages rather than others, is the same
Constitution that prevents the state from either
mandating adherence to an established religion, U.S.
Const. amend I, or enforcing private moral or religious
beliefs without an accompanying secular purpose.
Perry, 704 F. Supp. 2d at 930-931 (citing Lawrence v.
App. 134
Texas, 539 U.S. 558, 571 (2003)). As a result, tradition
and morality are not rational bases for the MMA.
4. Federalism
Citing to the Supreme Courts decision in Windsor,
the state defendants maintain that the authority to
define marriage falls within the exclusive and inherent
powers of the state.6 In finding section 3 of DOMA
6
Forty years before the Supreme Court decided Windsor, the

Minnesota Supreme Court held in Baker v. Nelson, 291 Minn. 310
(1971), that same-sex couples have no Fourteenth Amendment
right to marry. The following year, in a single sentence, the United
States Supreme Court dismissed the appeal for want of a
substantial federal question. Baker v. Nelson, 409 U.S. 810
(1972). The state defendants have argued in the present case that
Baker is binding precedent.
The answer to this argument was ably articulated by Judge
Shelby in Kitchen, 2013 U.S. Dist. LEXIS 179331, at *23-26:
[T]he Supreme Court has stated that a summary dismissal
is not binding when doctrinal developments indicate
otherwise. Hicks v. Miranda, 422 U.S. 332, 344 (1975).
Here, several doctrinal developments in the Courts
analysis of both the Equal Protection Clause and the Due
Process Clause as they apply to gay men and lesbians
demonstrate that the Courts summary dismissal in Baker
has little if any precedential effect today. Not only was
Baker decided before the Supreme Court held that sex is
a quasi-suspect classification, see Craig v. Boren, 429 U.S.
190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688
(1973) (plurality op.), but also before the Court recognized
that the Constitution protects individuals from
discrimination on the basis of sexual orientation. See
Romer v. Evans, 517 U.S. 620, 635636 (1996). Moreover,
Baker was decided before the Supreme Court held in
Lawrence v. Texas that it was unconstitutional for a state
to demean [the] existence [of gay men and lesbians] or
App. 135
unconstitutional, the Windsor Court acknowledged
that:
The recognition of civil marriages is central to
state domestic relations law applicable to its
residents and citizens. See Williams v. North
Carolina, 317 U. S. 287, 298 (1942) (Each state
as a sovereign has a rightful and legitimate
concern in the marital status of persons
domiciled within its borders). The definition of
control their destiny by making their private sexual

conduct a crime. 539 U.S. 558, 578 (2003). As discussed
below, the Supreme Courts decision in Lawrence removes
a justification that states could formerly cite as a reason to
prohibit same-sex marriage.
* * *
As discussed above, the Courts decision in Windsor
does not answer the question presented here, but its
reasoning is nevertheless highly relevant and is therefore
a significant doctrinal development. Importantly, the
Windsor Court foresaw that its ruling would precede a
number of lawsuits in state and lower federal courts
raising the question of a states ability to prohibit same-sex
marriage, a fact that was noted by two dissenting
justices. . . . It is also notable that while the Court declined
to reach the merits in Hollingsworth v. Perry because the
petitioners lacked standing to pursue the appeal, the
Court did not dismiss the case outright for lack of a
substantial federal question. See U.S. , 133 S.Ct.
2652 (2013). Given the Supreme Courts disposition of both
Windsor and Perry, the court finds that there is no longer
any doubt that the issue currently before the court in this
lawsuit presents a substantial question of federal law.
The Court finds this reasoning persuasive and adopts the above
quoted passage in full. Baker no longer has any precedential effect.
App. 136
marriage is the foundation of the States broader
authority to regulate the subject of domestic
relations with respect to the [p]rotection of
offspring, property interests, and the
enforcement of marital responsibilities. Ibid.
Id. at 2691. The state defendants gloss over one
important caveat. While the justices recognized the
states expansive power in the realm of domestic
relations, they also noted that this power has its limits.
Writing for the majority, Justice Kennedy stated that
domestic relations laws defining and regulating
marriage, of course, must respect the constitutional
rights of persons . . . but, subject to those guarantees,
regulation of domestic relations is an area that has
long been regarded as a virtually exclusive province of
the states, id. (citing Loving) (internal quotations
omitted), and that [t]he states interest in defining and
regulating the marital relation [is] subject to
constitutional guarantees . . . Id. at 2692. These
statements are not merely surplusage, and as one
district astutely remarked, [a] citation to Loving is a
disclaimer of enormous proportion. Bishop, 2014 U.S.
Dist. LEXIS 4374, at *66.
Loving has profound implications for this litigation.
In that case, the Supreme Court overturned Virginias
anti-miscegenation statutes prohibiting interracial
marriage because they violated substantive due process
and equal protection. In doing so, the Court rejected
Virginias argument that under the Constitution the
regulation and control of marital and family
relationships are reserved to the States. Kitchen, 2013
U.S. Dist. LEXIS 179331, at *83-84 (citation omitted).
This position, which the state defendants advance
App. 137
again in the present case, is just as ineffectual now as
it was in Loving. 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. Having failed to establish such an
interest in the context of same-sex marriage, the MMA
cannot stand.
Further, the Court rejects the contention that
Michigans traditional definition of marriage possesses
a heightened air of legitimacy because it was approved
by voter referendum. The popular origin of the MMA
does nothing to insulate the provision from
constitutional scrutiny. As Justice Robert H. Jackson
once wrote,
[t]he very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond the
reach of majorities and officials and to establish
them as legal principles to be applied by the
courts. Ones right to life, liberty, and property,
to free speech, a free press, freedom of worship
and assembly, and other fundamental rights
may not be submitted to vote; they depend on
the outcome of no elections.
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638
(1943); see e.g. Weinberger v. Wiesenfeld, 420 U.S. 636,
638 n. 2 (1975) (stating that the right to equal
protection is incorporated within the Fifth
Amendments Due Process Clause). The Court is not
aware of any legal authority that entitles a
ballot-approved measure to special deference in the
App. 138
event it raises a constitutional question. On the
contrary,
the Supreme Court has clearly stated that if . . .
an enactment violates the U.S. Constitution whether passed by the people or their
representatives - judicial review is necessary to
preserve the rule of law . . . [t]he electorate
cannot order a violation of the Due Process or
Equal Protection Clauses by referendum or
otherwise, just as the state may not avoid their
application by deferring to the wishes or
objections of its citizens.
Obergefell v. Wymyslo, No. 13-0501, 2013 U.S. Dist.
LEXIS 179550, at *27-28 (S.D. Ohio Dec. 23, 2013)
(citing Cleburne, 473 U.S. at 448). In view of the
foregoing, the states domestic relations authority
cannot trump federal constitutional limitations.
IV.
Conclusion
In attempting to define this case as a challenge to

the will of the people, Tr. 2/25/14 p. 40, state
defendants lost sight of what this case is truly about:
people. No court record of this proceeding could ever
fully convey the personal sacrifice of these two
plaintiffs who seek to ensure that the state may no
longer impair the rights of their children and the
thousands of others now being raised by same-sex
couples. It is the Courts 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.
Windsor, 133 S. Ct. at 2694. Todays decision is a step
in that direction, and affirms the enduring principle
App. 139
that regardless of whoever finds favor in the eyes of the
most recent majority, the guarantee of equal protection
must prevail.
Accordingly,
IT IS HEREBY DECLARED that Article I, 25 of
the Michigan Constitution and its implementing
statutes are unconstitutional because they violate the
Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution.
IT IS FURTHER ORDERED that the State of
Michigan is enjoined from enforcing Article I, 25 of
the Michigan Constitution and its implementing
statutes.
S/ Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated:
March 21, 2014

Detroit, Michigan
App. 140
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Civil Action No. 12-CV-10285
HON. BERNARD A. FRIEDMAN
[Filed March 21, 2014]
____________________________________
APRIL DEBOER, individually and
)
as parent and next friend of N.D.-R, )
R.D.-R., and J.D.-R, minors, and
)
JAYNE ROWSE, individually and as )
parent and next friend of N.D.-R,
)
R.D.-R., and J.D.-R, minors,
)
)
Plaintiffs,
)
)
vs.
)
)
RICHARD SNYDER, in his official
)
capacity as Governor of the State of
)
Michigan, and BILL SCHUETTE,
)
in his official capacity as Michigan
)
Attorney General,
)
)
Defendants.
)
___________________________________ )
App. 141
JUDGMENT
The Court in this matter has issued its Findings of
Fact and Conclusions of Law. In accordance therewith,
IT IS ORDERED AND ADJUDGED that judgment
be and is hereby granted for plaintiffs and against
defendants.
IT IS FURTHER ORDERED AND ADJUDGED
that defendants are hereby permanently enjoined from
enforcing the Michigan Marriage Amendment and its
implementing statutes, as they conflict with the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution.
DAVID J. WEAVER
CLERK OF COURT
By: Carol L. Mullins________________
Deputy Clerk
March 21, 2014
Approved: s/ Bernard A. Friedman______
BERNARD A. FRIEDMAN
SENIOR U.S. DISTRICT JUDGE
App. 142
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 14-1341
[Filed November 6, 2014]
_______________________________________
)
)
)
v.
)
)
RICHARD SNYDER, Governor, State of )
Michigan, in his official capacity, et al., )
Defendants-Appellants.
)
______________________________________ )
Before: DAUGHTREY, SUTTON and COOK, Circuit
Judges.
JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION WHEREOF, it is ORDERED
that the judgment of the district court is REVERSED.
App. 143
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk

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NO.

In the Supreme Court of the United States

On Petition for Writ of Certiorari to the

PETITION FOR WRIT OF CERTIORARI

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

THE SIXTH CIRCUITS DECISION

THE SIXTH CIRCUITS DECISION

THE QUESTION PRESENTED IS OF

PETITIONERS CASE PRESENTS

DeBoer works as a nurse in a hospital neonatal unit tending to

See, e.g., Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003).

The district court did not entertain arguments on heightened

THE SIXTH CIRCUITS DECISION

The Sixth Circuits decision upholding Michigans

The Sixth Circuits conclusion that Petitioners challenge is

THE SIXTH CIRCUITS DECISION

The Sixth Circuit, finding the democratic process as

THE QUESTION PRESENTED IS OF

This case presents an overwhelmingly important

There are tens of thousands of other same-sex couple families

Tangible protections and responsibilities denied to gay and

PETITIONERS CASE PRESENTS AN

Because Michigans constitutional and statutory

See Alison M. Smith, Cong. Research Serv., RL 31944, Same-Sex

The Sixth Circuit majority appears to state that Petitioners

See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (Marriage is

In the district court, the state did not advance an unintended

On October 6, the Supreme Court denied certiorari and lifted

See Doe v. Ventura, No. 01-489, 2001 WL 543734 (D. Ct. of

See United States v. Windsor, Brief on the Merits for Respondent

In Tennessee, for example, a proposed amendment must first be

The defendants in this matter are Michigan Governor Richard

The underlying facts of this case are

Trial Proceedings, Summary of Testimony,

In setting the case for trial, the Court directed the

A longitudinal study is one that measures specific indicators over

Rosenfelds study showed that children raised by heterosexual

Under Michigan law, the statutory requirements applicable to

The Court finds that the MMA impermissibly

The Court notes, however, that the Supreme Court has

Forty years before the Supreme Court decided Windsor, the

control their destiny by making their private sexual

In attempting to define this case as a challenge to

March 21, 2014

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