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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

EDITH SCHLAIN WINDSOR, In Her Official Capacity as Executor of the Estate of Thea Clara Spyer, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. Appeal Nos. 12-2335 & 12-2435

MOTION TO FILE HISTORIAN AMICI BRIEF Putative Amici are 23 historians (hereinafter Historians) who have previously filed amici briefs before the First and Ninth Circuits supporting successful challenges to the Defense of Marriage Act (DOMA).1 Their brief, as filed in those Courts of Appeals and as sought to be filed here, describes the history of marriage in the United States; how the definition of marriage has always

Massachusetts v. U.S. Dept. of Health and Human Services, 682 F.3d 1 (1st Cir. 2012); In re Golinski, 587 F.3d 956 (9th Cir. 2009).
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varied from state to state; and how the determination of marital status has historically been understood to be the role of the states, not the federal government. Plaintiff-Appellee Windsor and the Department of Justice on behalf of the United States consent to the filing of the Historian brief before this Court. Intervenor-Defendant-Appellant, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), however, does not. Although BLAG twice consented to the filing of a substantially similar brief with the same signatories in the First and Ninth Circuits, BLAG informed the Historians counsel that it does not consent to the filing of the brief in this Court, on the ground that two of the twenty-three signatories to the brief, Professors George Chauncey and Nancy F. Cott, filed expert affidavits on behalf of Ms. Windsor at the trial level.2 Pursuant to Fed. R. App. P. 29, the Historians respectfully move for leave to file their brief with this Court.3

Professors Chauncey and Cott also filed expert affidavits before the district courts in Massachusetts and Golinski, with no objection from BLAG to their participation in the amici briefs filed before those Courts of Appeal. 3 Pursuant to Rule 29(b), the amici brief is appended to this motion. Two copies are attached: one with Professors Chauncey and Cott as amici (Attachment (Att.) A), and one without their names (Att. B). The language of the two copies is the same, except footnote one of Att. B notes that Professors Chauncey and Cott participated in preparation of the brief. It is unclear whether BLAG consents to the filing of Att. B. BLAG articulated its objection to Historians counsel as follows: the House does not object except insofar as the proposed amici brief would include amici who also appeared in this case as expert witnesses for party. We believe it is
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BACKGROUND I. The putative Amici are historians eminent in their field. The putative Amici are 23 historians of American marriage who have authored scholarly works in the fields germane to the brief. They include sitting and emeritus professors of history at twenty eminent research and teaching institutions, including, among others, the University of Chicago, Columbia University, Duke University, Harvard University, Stanford University, the University of Pennsylvania, Princeton University, and Yale University. (See Att. A (List of Amici Curiae).) As stated in the brief, the brief aims to provide accurate historical perspective as the Court inquires into state and federal purposes for marriage and relative prerogatives in defining marital status. Amici support Appellees position that the Defense of Marriage Act (DOMA) is historically unprecedented: until DOMA was passed, the federal government consistently deferred to state determinations of marital status, even while significant marriage policies differed in various states. Moreover, Amici disagree with Appellants contention that the core governmental purpose of marriage is to foster procreation, since states have always had several key purposes in establishing and regulating marital unions. (Att. A at 1.)

not appropriate for the same person to appear both as an expert witness and as an amicus curiae in the same case. If the brief includes no such amici, we have no objection. To the extent that BLAG does not object to Att. B, if the Court concludes, contrary to the argument herein, that an amici brief with Professor Chauncey and Cotts names as amici should be excluded, then Att. B is submitted by the remaining amici by consent.
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II. Professors Chauncey and Cott are leaders in their fields. Professors Chauncey and Cott are among the worlds foremost authorities with respect to, respectively, the history of marriage in the United States and the social history of gays and lesbians in the United States. Nancy F. Cott is the Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library on the History of Women in America at the Radcliffe Institute for Advanced Study and the Jonathan Trumbull Professor of American History at Harvard University. Between 1975 and 2001, she taught at Yale University, beginning as an assistant professor and departing as the Sterling Professor of History and American Studies. At Yale, she was among the founders of the womens studies program in the late 1970s and chaired that program from 1980 to 1987; she chaired the American studies program from 1994 to 1997 and was director of the Division of the Humanities between 1999 and 2001. At Harvard, she teaches courses in US history focusing on gender issues. Professor Cotts book Public Vows: A History of Marriage and the Nation (2000), has been described as the most powerful and thorough account of the evolution of marriage as a legal and social practice in this country by Martha Minow, Dean of Harvard Law School. Her other books include The Bonds of Womanhood: Womans Sphere in New England, 17801835 (1977), The Grounding of Modern Feminism (1987), and A Woman Making History: Mary

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Ritter Beard Through Her Letters (1991). Her articles have appeared in The American Historical Review, American Quarterly, Feminist Studies, Journal of American History, Journal of Social History, William and Mary Quarterly, The Yale Review, and Signs: A Journal of Women in Culture and Society. She has held research fellowships from the Center for Advanced Study in the Behavioral Sciences, the Guggenheim Foundation, Harvard Law School, the National Endowment for the Humanities, and the Rockefeller Foundation. She has served on the executive board of the Organization of American Historians, on the National Council of the American Studies Association, and on numerous editorial boards of journals and reference works, such as the American National Biography and Notable American Women. She has also served as an advisor for documentary films and public television productions and has lectured on college campuses and at academic conferences around the world. Professor Chauncey is a Professor of History & American Studies and the Chair of the History Department at Yale University. He is also the co-director of the Yale Research Initiative on the History of Sexualities and has served as the chair of LGBT Studies at Yale. He received his doctorate in history from Yale in 1989 and then taught for fifteen years at the University of Chicago, as well as for shorter periods at Rutgers, New York University, and the cole Normale Suprieure in Paris. In 2012 he was awarded the Sidonie Miskimin Clauss Prize for

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Teaching Excellence in the Humanities. His book Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994) won the Organization of American Historians Merle Curti Prize for the best book in social history and Frederick Jackson Turner Prize for the best first book in any field of history, as well as the Los Angeles Times Book Prize and Lambda Literary Award. He has also published Why Marriage? The History Shaping Today's Debate over Gay Equality (2004); authored numerous scholarly articles; co-edited three books and special journal issues; and delivered numerous lectures on gender, homosexuality, sexuality, and civil rights in the United States. He has served on the National Council of the American Studies Association and the Nominating Board of the Organization of American Historians. While the remaining signatories to the Historians brief submit Attachment B without the signatures of Professors Chauncey and Cott if necessary for submission to the Court of their brief (see supra n. 3), they do so only over their strong objection at the exclusion of these leaders in their fields, and with the understanding that the brief is built upon the foundational research of the omitted scholars, in particular, Professor Cotts authoritative text, Public Vows. DISCUSSION Counsel for Historians is unaware of any authority for the proposition that someone who has filed an expert affidavit at trial may not join as a signatory to an

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amici brief before the appellate court. To the extent the argument is that such joinder is inappropriate because having filed their affidavits, Professors Chauncey and Cott may not be impartial, [t]here is no rule ... that amici must be totally disinterested. Concerned Area Residents for The Environment v. Southview Farm, 834 F.Supp. 1410, 1413 (W.D.N.Y. 1993) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir.1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, (1995)). Indeed, by the nature of things an amicus is not normally impartial. Concerned Area Residents, 834 F.Supp. at 1413 (quoting Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir.1970)); see also Neonatology Associates, P.A. v. Commr, 293 F.3d 128, 131 (3d Cir. 2002) (opinion of Alito, J.) (appellants argument that amicus must be impartial is difficult to square with [Rule 29s] requirement [that an amicus have an interest in the case]. [I]t is not easy to envisage an amicus who is disinterested but still has an interest in the case.). 4

Judge Rakoffs one-paragraph opinion in Picard v. Greiff, denying an amicus appearance on partiality grounds, is readily distinguished from the instant motion. The Picard decision was based on the fact that the putative amicus was at the time a party to a then-pending adversary proceeding brought by the Picard counterparty on a related matter (both actions related to fallout from the Bernard Madoff Ponzi scheme), and therefore could not provide the court with neutral assistance in analyzing the issues before it. Picard v. Greiff, 797 F.Supp.2d 451 (S.D.N.Y. 2011) (internal citation omitted). Professors Chauncey and Cotts expert testimony in the lower court does not approach the direct investment in the outcome of the case of an active litigant on a related matter about which Judge Rakoff was
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Rather, the usual test for submission of an amicus brief is whether it brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. See Sup. Ct. R. 37.1. There does not seem to be any objection from BLAG on this ground, nor could there be. As leading scholars in the relevant fields, the Historians collectively offer a degree of historical expertise and depth of insight with respect to the history of marital relations in the United States that is not readily available outside the context of rigorous academic inquiry. Theirs is precisely the sort of amicus brief that can provide unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d 295, 311 (W.D.N.Y. 2007) (quoting Ryan v. Commodity Futures Trading Commn, 125 F.3d 1062, 1063 (7th Cir. 1997) (opinion of Posner, C.J.)). If anything, Professors Chauncey and Cotts service as expert witnesses further underscores their qualification to provide the kind of contextual and analytical assistance that courts expect from amicus curiae. Logically, the fact that 21 other scholars vigorously endorse and join in their views through an amici brief would prove of even greater use to the Court on appeal.

concerned, particularly in light of his express reiteration of the principle that there is certainly no requirement that amici be totally disinterested. Id.
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Tellingly, it is the very expertise that rendered Professors Chauncey and Cott indispensable as expert witnesses before the trial court that inspires 21 other scholars to join them in the amici brief. The presence of all 23 researchers and scholars on the brief will ensure that the Court receives the most rigorous presentation of the data supporting Ms. Windsors position, resulting in the kind of strong but responsible presentation in support of a party that can truly serve as the courts friend. Neonatology Associates, 293 F.3d at 131. CONCLUSION For the reasons set forth herein, the putative Amici respectfully request that the Court permit them to file an amici brief in support of the Plaintiff-Appellee and affirming the District Courts grant of summary judgment.

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DATED: September 7, 2012 Respectfully submitted, s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland ME 04101 [email protected] (207)791-1389 Attorney for putative Amici Curiae Peter W. Bardaglio, Norma Basch, George Chauncey, Stephanie Coontz, Nancy F. Cott, Toby L. Ditz, Ariela Dubler, Laura F. Edwards, Estelle B. Freedman, Sarah Barringer Gordon, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha Hodes, Linda K. Kerber, Alice KesslerHarris, Elaine Tyler May, Steven Mintz, Elizabeth H. Pleck, Carole Shammas, Mary L. Shanley, Amy Dru Stanley, Barbara Young Welke

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system on September 7, 2012. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: September 7, 2012 s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland ME 04101 [email protected] (207) 791-1389

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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT EDITH SCHLAIN WINDSOR, In Her Official Capacity as Executor of the Estate of Thea Clara Spyer, Plaintiff-Appellee, v. UNITED STATES OF AMERICA Defendant-Appellant and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York, Case No. 10-civ-8435 BRIEF OF AMICI CURIAE HISTORIANS PETER W. BARDAGLIO NORMA BASCH GEORGE CHAUNCEY STEPHANIE COONTZ NANCY F. COTT TOBY L. DITZ ARIELA DUBLER LAURA F. EDWARDS ESTELLE B. FREEDMAN SARAH BARRINGER GORDON MICHAEL GROSSBERG HENDRIK HARTOG ELLEN HERMAN MARTHA HODES LINDA K. KERBER ALICE KESSLER-HARRIS ELAINE TYLER MAY STEVEN MINTZ ELIZABETH H. PLECK CAROLE SHAMMAS MARY L. SHANLEY AMY DRU STANLEY BARBARA YOUNG WELKE IN SUPPORT OF APPELLEE AND OF AFFIRMANCE OF THE JUDGMENT BELOW Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389 Attorney for Amici Curiae
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12-2335 & 12-2435

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LIST OF AMICI CURIAE Sarah Barringer Gordon Peter W. Bardaglio Arlin M. Adams Professor Senior Fellow of Constitutional Law Second Nature and Professor of History Formerly Professor of History University of Pennsylvania Ithaca College Norma Basch Professor Emerita Rutgers University George Chauncey Professor of History and American Studies Yale University Elaine Tyler May Regents Professor of American Studies and History University of Minnesota

Steven Mintz Michael Grossberg Sally M. Reahard Professor of Executive Director of the Institute for History & Professor of Transformative Learning Law University of Texas System Indiana University

Elizabeth H. Pleck Hendrik Hartog Professor of History Class of 1921 Bicentennial Professor in the History of University of Illinois, Urbana/Champaign, American Law Stephanie Coontz Emerita and Liberty Professor of History and Princeton University Family Studies The Evergreen State College Carole Shammas John R. Hubbard Chair in Ellen Herman Professor of History History Emerita Nancy F. Cott Jonathan Trumbull Professor University of Oregon University of Southern of American History California Harvard University Martha Hodes Professor of History Mary L. Shanley New York University Margaret Stiles Halleck Toby L. Ditz Professor of History Professor of Social Johns Hopkins University Science Linda K. Kerber May Brodbeck Professor Vassar College in the Liberal Arts and Ariela R. Dubler Professor of History, George Welwood Murray Amy Dru Stanley Lecturer in Law Professor of Legal History Associate Professor of University of Iowa Columbia Law School History University of Chicago Alice Kessler-Harris Laura F. Edwards R. Gordon Hoxie Professor Professor of History Barbara Young Welke of History Duke University Professor of History and Columbia University Professor of Law University of Minnesota Estelle B. Freedman Edgar E. Robinson Professor in U.S. History Stanford University

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(C)(4) ............................................................................................. 1 SUMMARY OF THE ARGUMENT ........................................................................ 3 ARGUMENT ............................................................................................................. 5 I. Valid Marriage as a Legal Status Created by the States ....................... 5 A. B. II. Civil Authorization .....................................................................5 Exclusive State Control...............................................................6

The Federal Governments Exceptional Actions .................................. 8 A. B. Civil War and Reconstruction.....................................................8 Polygamy in the Utah Territory ................................................10

III. States Several Purposes in Civil Marriage ......................................... 11 A. B. C. IV. Governing through Marriage ....................................................11 Economic Dimensions ..............................................................12 Supporting Children ..................................................................16

States Variation and Federal Acceptance .......................................... 18 A. B. Multiplicity of State Variations and Inter-State Conflicts ........19 Federal deference to state determinations .................................24

V.

Change and Continuity into the Present .............................................. 26

CONCLUSION ........................................................................................................ 29 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULES OF APPELLATE PROCEDURES 29(d) AND 32(a) ................................................... 31

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Page CERTIFICATE OF SERVICE ................................................................................ 32

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TABLE OF AUTHORITIES Page CASES Adams v. Palmer, 51 Me. 481 (1866) ...........................................................................................6 Califano v. Goldfarb, 430 U.S. 199 (1977).......................................................................................27 Cunningham v. Appel, 12 Fed. Appx 361 (2001) ...............................................................................25 Ex Parte Kinney, 14 F. Cas. 602 (C.C.E.D. Va. 1879) ....................................................... 22, 24 Fenton v. Reed, 4 Johns. 52 (NY 1809) ...................................................................................20 Helvering v. Fuller, 310 U.S. 69 (1967).........................................................................................25 In re Tidewater Marine Towing, Inc., 785 F. 2d 1317 (5th Cir. 1986) ......................................................................20 Loving v. Virginia, 388 U.S. 1 (1967).......................................................................... 8, 22, 27, 28 Maryland v. Baldwin, 112 U.S. 490 (1884).......................................................................................20 Maynard v. Hill, 125 U.S. 190 (1888).........................................................................................6 Meister v. Moore, 96 U.S. 76 (1877)...........................................................................................20 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).......................................................................................24 Orr v. Orr, 440 U.S. 268 (1979).......................................................................................27

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Page Perez v. Sharp, 198 P.2d 17 (Cal. 1948) .................................................................................28 Sherrer v. Sherrer, 334 U.S. 343 (1948)................................................................................ 22, 29 Slessinger v. Sec. of HHS, 835 F. 2d 937 (1st Cir. 1987).........................................................................20 Turner v. Safley, 482 U.S. 78 (1987).........................................................................................15 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)................................................................................ 14, 27 STATUTES, RULES AND REGULATIONS 20 C.F.R. 404.346 .................................................................................................25 Defense of Marriage Act, PUB. L. NO. 104-99; 1 U.S.C. 7 .......................... passim Edmunds-Tucker Act, ch. 397, 24 Stat. 635, 635-39 (1887) (codified 28 U.S.C. 633, 660) (repealed in 1978) .........................................................10 Morrill Act, ch.126, 1-3, 12 Stat. 501, 501-02 (1862) .........................................10 Poland Act, ch. 469, 3, 18 Stat. 253, 253-54 (1874) ............................................10 Rev. Rul. 58-66, 1958-1 C.B. 60 .............................................................................25 SSR 67-56, 1967 WL 2993 ......................................................................................22 U.S. Const. amend. XIV ............................................................................... 8, 10, 27 UTAH CONST. art III, 1 ...........................................................................................11 OTHER AUTHORITIES 1 HOWARD, GEORGE ELLIOTT, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES (1904) ............................ 5, 20 2010 Current Population Survey; see http://www.census.gov/newsroom/releases/archives/families_househo lds/cb10-174.html ..........................................................................................17
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Page 3 HOWARD, GEORGE ELLIOTT, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES (1904) .................................16 BARDAGLIO, PETER W., RECONSTRUCTING THE HOUSEHOLD: FAMILIES, SEX, AND THE LAW IN THE NINETEENTH-CENTURY SOUTH (1995) ..........................1 BASCH, NORMA, FRAMING AMERICAN DIVORCE (1999) ..................................... 1, 23 BASCH, NORMA, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN 19TH CENTURY NEW YORK (1982) ....................................... 1, 27 BLACKSTONE, WILLIAM, COMMENTARIES ON THE LAWS OF ENGLAND ....................16 BLAKE, NELSON, THE ROAD TO RENO: A HISTORY OF DIVORCE IN THE UNITED STATES (1962)...................................................................................29 Chused, Richard H., Married Womens Property Law: 1800-1850, 71 GEO. L.J. 1359 (1983) .............................................................................................27 CLARK, JR., HOMER H., THE LAW OF DOMESTIC RELATIONS (2d ed. 1988, 2d prtg. 2002)................................................................................................. 6, 13 CONG. GLOBE 38th Cong., 1st Sess. 1324 (1864) ......................................................9 COONTZ, STEPHANIE, MARRIAGE, A HISTORY (2006) ................................................1 COONTZ, STEPHANIE, THE SOCIAL ORIGINS OF PRIVATE LIFE: A HISTORY OF AMERICAN FAMILIES, 1600-1900 (1988) .........................................................1 COTT, NANCY F., PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000) ..................................................................................................... passim
DE SECONDAT, CHARLES (BARON DE MONTESQUIEU),

SPIRIT OF THE LAWS (1748) ...................................................................................................... 16, 18

DECISIONS OF THE DEPARTMENT OF THE INTERIOR IN APPEALED PENSION AND BOUNTY-LAND CLAIMS (John W. Bixler, ed., United States Dept. of the Interior, vol. XIX (1887-1930) ................................................................25 DITZ, TOBY L., PROPERTY AND KINSHIP: INHERITANCE IN EARLY CONNECTICUT (1986) .......................................................................................1

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Page Dubler, Ariela, Governing Through Contract: Common Law Marriage in the 19th Century, 107 YALE L. J. 1885 (1998) .......................................................1 Dubler, Ariela, Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957 (2000).............................................................................2 EDWARDS, LAURA F., GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF RECONSTRUCTION (1997) ............................................................2 Edwards, Laura F., The Marriage Covenant Is at the Foundation of All Our Rights, 14 LAW & HIST. REV. 90 (1996)..........................................................9 FOWLER, DAVID H., NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE (1987) ..........................................................................................21 FREEDMAN, ESTELLE B. AND JOHN DEMILIO, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA (2d ed. 1997) .........................................2 GLENDON, MARY ANN, ABORTION AND DIVORCE IN WESTERN LAW (1987) ...........28 GORDON, SARAH BARRINGER, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH CENTURY AMERICA (2002) .................................................................................................. 2, 10, 11 Grossberg, Michael, Crossing Boundaries: Nineteenth-Century Domestic Relations Law and the Merger of Family and Legal History, 1985 AM. B. FOUND. RES. J. 799 (1985) ..........................................................................8 GROSSBERG, MICHAEL, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA (1985) .............................................. passim HARTOG, HENDRIK, MAN & WIFE IN AMERICA, A HISTORY (2000) ................... 2, 22 HERMAN, ELLEN, KINSHIP BY DESIGN: A HISTORY OF ADOPTION IN THE MODERN UNITED STATES (2008) .....................................................................2 HODES, MARTHA, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE 19TH CENTURY SOUTH (1997) ...........................................................................2 KERBER, LINDA K., NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998) ........................................................2

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Page KESSLER-HARRIS, ALICE, IN PURSUIT OF EQUITY: WOMEN, MEN, AND THE QUEST FOR EXONOMIC CITIZENSHIP IN 20TH-CENTURY AMERICA (2001) .................................................................................................. 2, 14, 27 KOPPLEMAN, ANDREW, SAME SEX DIFFERENT STATES (Yale U. Press 2006) .........22 Lynch, James P., Social Security Encounters Common-Law Marriage in North Carolina, 16 N.C. L REV. 255 (1937-38) ............................................25 May, ELAINE TYLER, BARREN IN THE PROMISED LAND (1996) ..................................2 MAY, ELAINE TYLER, HOMEWARD BOUND: AMERICAN FAMILIES IN THE COLD WAR ERA (2008) ..............................................................................................2 MINTZ, STEVEN, DOMESTIC REVOLUTIONS: A SOCIAL HISTORY OF AMERICAN FAMILY LIFE (1988) .........................................................................................2 National Archives and Records Service, General Services Administration, REVOLUTIONARY WAR PENSION AND BOUNTYLAND-WARRANT APPLICATION FILES, National Archives Microfilm Publications, Pamphlet Describing M804 (Washington, D.C., 1974), available at http://www.footnote.com/pdf/M804.pdf ...................................14 PASCOE, PEGGY, WHAT COMES NATURALLY: MISCEGENATION LAW AND THE MAKING OF RACE IN AMERICA (2009) .................................................... 21, 28 PLECK, ELIZABETH H., CELEBRATING THE FAMILY: ETHNICITY, CONSUMER CULTURE, AND FAMILY RITUALS (2001) ..........................................................2 RILEY, GLENDA, DIVORCE: AN AMERICAN TRADITION 65 (1991) .................... 23, 29 SHAMMAS, CAROLE, A HISTORY OF HOUSEHOLD GOVERNMENT IN AMERICA (2002) ...............................................................................................................2 Shammas, Carole, Anglo-American Household Government in Comparative Perspective, 52 WM. & MARY Q. 104 (1995)................................................13 SHANLEY, MARY L., FEMINISM, MARRIAGE AND THE LAW IN VICTORIAN ENGLAND (1989) ..............................................................................................2 SHANLEY, MARY L., MAKING BABIES, MAKING FAMILIES (2001) .............................2

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Page Shanley, Mary L., Marriage Contract and Social Contract in 17th-Century English Political Thought, in THE FAMILY IN POLITICAL THOUGHT (J.B. Elshtain ed., 1982) ................................................................................12 Siegel, Reva, The Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930, 82 GEO. L.J. 2127 (1994) ...............27 SKOCPOL, THEDA, PROTECTING SOLDIERS AND MOTHERS (1992) ...........................14 STANLEY, AMY DRU, FROM BONDAGE TO CONTRACT: WAGE LABOR, MARRIAGE AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION (1998) ...............................................................................................................2 Stein, Edward, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L.Q. 611 (2004) ...............29 STORY, JOSEPH, COMMENTARIES ON THE CONFLICT OF LAWS (2d ed. 1841) ...... 7, 22 SUGARMAN, STEPHEN D. AND KAY, HERMA HILL, ED., DIVORCE REFORM AT THE CROSSROADS (1990)................................................................................28 WELKE, BARBARA YOUNG, LAW AND THE BORDERS OF BELONGING IN THE LONG NINETEENTH CENTURY UNITED STATES (2010) .....................................2

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STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(C)(4)1 Amici are historians of American marriage, family and law, whose research documents how the institution of marriage has functioned and changed over time. Our brief aims to provide accurate historical perspective as the Court inquires into state and federal purposes for marriage and relative prerogatives in defining marital status. Amici support Appellees position that the Defense of Marriage Act (DOMA) is historically unprecedented: until DOMA was passed, the federal government consistently deferred to state determinations of marital status, even while significant marriage policies differed in various states. Moreover, Amici disagree with Appellants contention that the core governmental purpose of marriage is to foster procreation, since states have always had several key purposes in establishing and regulating marital unions.2

Amici and counsel for Amici authored this Brief in whole. No party or partys counsel contributed money intended to fund preparing or submitting this Brief. No person other than amici curiae or counsel contributed money intended to fund preparing or submitting the Brief. 2 This brief is based on amicis decades of study and research. Amici are the authors of the principal scholarly work in the relevant fields, including: PETER W. BARDAGLIO, RECONSTRUCTING THE HOUSEHOLD: FAMILIES, SEX, AND THE LAW IN THE NINETEENTH-CENTURY SOUTH (1995); NORMA BASCH, FRAMING AMERICAN DIVORCE (1999) and IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY TH IN 19 CENTURY NEW YORK (1982); STEPHANIE COONTZ, THE SOCIAL ORIGINS OF PRIVATE LIFE: A HISTORY OF AMERICAN FAMILIES, 1600-1900 (1988); MARRIAGE, A HISTORY (2006); NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000); TOBY L. DITZ, PROPERTY AND KINSHIP: INHERITANCE IN EARLY CONNECTICUT (1986); Ariela Dubler, Governing Through Contract:
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All parties but Bipartisan Legal Advisory Group (BLAG) have consented to the filing of this Brief, and putative amici have accordingly filed a motion for leave to file their brief in pursuant to Fed.R.App.P. 29.

Common Law Marriage in the 19th Century, 107 YALE L. J. 1885 (1998); Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957 (2000); LAURA F. EDWARDS, GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF RECONSTRUCTION (1997); ESTELLE B. FREEDMAN AND JOHN DEMILIO, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA (2d ed. 1997); MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA (1985); SARAH BARRINGER GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH CENTURY AMERICA (2002); HENDRIK HARTOG, MAN & WIFE IN AMERICA, A HISTORY (2000); ELLEN HERMAN, KINSHIP BY DESIGN: A HISTORY OF ADOPTION IN THE MODERN UNITED STATES (2008); MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE 19TH CENTURY SOUTH (1997); LINDA K. KERBER, NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998); ALICE KESSLER-HARRIS, IN PURSUIT OF EQUITY: WOMEN, MEN, AND THE QUEST FOR ECONOMIC CITIZENSHIP IN 20TH-CENTURY AMERICA (2001); ELAINE TYLER MAY, HOMEWARD BOUND: AMERICAN FAMILIES IN THE COLD WAR ERA (2008); BARREN IN THE PROMISED LAND (1996); STEVEN MINTZ, DOMESTIC REVOLUTIONS: A SOCIAL HISTORY OF AMERICAN FAMILY LIFE (1988); ELIZABETH H. PLECK, CELEBRATING THE FAMILY: ETHNICITY, CONSUMER CULTURE, AND FAMILY RITUALS (2001); CAROLE SHAMMAS, A HISTORY OF HOUSEHOLD GOVERNMENT IN AMERICA (2002); MARY L. SHANLEY, MAKING BABIES, MAKING FAMILIES (2001); FEMINISM, MARRIAGE AND THE LAW IN VICTORIAN ENGLAND (1989); AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR, MARRIAGE AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION (1998); BARBARA YOUNG WELKE, LAW AND THE BORDERS OF BELONGING IN THE LONG NINETEENTH CENTURY UNITED STATES (2010). Assertions in the brief are supported by this scholarship, whether or not expressly cited.
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SUMMARY OF THE ARGUMENT Control of marital status is reserved to the states in our federal system. The states have had a variety of purposes in authorizing and regulating marriage, in that the marriage contract embodies individuals free consent to enter long-lasting intimate relations, while marital households also serve to protect individuals, ensure social order and advance economic welfare. States have valued maritallybased households as benefits to public good whether or not they include biologically-related parents and children. A diversity in marriage rules resulted, and states differing standards often provoked serious contestation in the past. Significant differences among state laws prescribing who was eligible to marry whom have existed throughout American history. Some states allowed two first cousins, or young teenagers, or couples where one party was white and one was not, for example, to marry, while others nullified or criminalized such marriages. The practice of comity among the states accommodated these differences, although not without tensions: a state typically did not extend comity to marriages not comporting with its own public policy. State marital diversity reigned, and conflicts were resolved within American federalism.

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Despite state diversity throughout American history, before enactment of DOMA,3 the federal government consistently relied on the different states determinations. It did not seek a single definition for all federal purposes of any dimension of marital eligibility or status.4 Before 1996, Congress never took a position on a contested marital status preemptively so as to discredit a policy choice that a state might make. Federal agencies distributing benefits assessed the validity of any marriage by looking to the relevant state law. Since the 1880s certain reformers have advocated for a comprehensive uniform national standard for marriage and divorce, but always recognized that amending the U.S. Constitution would be required. Their efforts never succeeded, facing far stronger support for states retaining their power over marital status. In historical perspective, DOMA appears as an attempt by Congress to exercise a power it has always been understood not to have, and that the representatives of the states repeatedly refused to grant it by constitutional amendment.

PUB. L. NO. 104-99; 1 U.S.C. 7. DOMA does not, in fact, create marital uniformity for federal purposes, because it leaves in place all state variations in marital eligibility and requirements besides the gender of the couple (Sec. IV, infra).
4
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ARGUMENT I. Valid Marriage as a Legal Status Created by the States A. Civil Authorization

Marriage in all the states of the United States has historically been a civil matter. Valid marriage relies on state authorization, distinct from religious rites performed according to the dictates of any religious community. Religion, sentiment and custom enter individuals understanding of marriage in important ways, but valid marriage is a creature of law in every state. The standard of civil authority over marriage derived from colonial New England and was important at the founding of the United States because of the new nations diverse religions. Regulations for creating valid civil marriages were among the first laws established by the states after independence from Great Britain.5 As an institution based on voluntary mutual consent, marriage was and remains understood to be a contract. But it has always been a unique contract, because of the states strong role in defining marriage and prescribing its obligations and rights.6 Marriage may be joined by private consent, but its legal obligations cannot be modified or ended thereby. The state is a party to and guarantor of the couples bond. Once marriage is entered, its rights, duties and 1 GEORGE ELLIOTT HOWARD, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES (1904) 121-226 (colonial precedents), 388-497 (early state marriage laws); see COTT supra n. 2 at 2, 52-53. 6 COTT, supra n. 2, at 10-11.
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obligations are of law, not of contract. as the Maine Supreme Judicial Court said in 1866, and this rule remains.7 For example, spouses cannot by private agreement abandon their obligation of mutual economic support.8 Until DOMA interrupted this practice, a couple validly married in a given state was always considered married at every level of government. Marital status (like citizen status) historically has changed an individuals legal persona, bearing legal meanings and consequences from the state to the national level. Wedding legally according to state-prescribed regulations transforms a couples status, giving both individuals new legal standing and distinctive obligations and rights. Over time, marriage has developed a unique social meaning. This owes in great part to the state placing its imprimatur of value on the couples choice to join in marriage, to remain committed to one another, to form a household and to join in an economic partnership to support one another. B. Exclusive State Control

During the writing of the U.S. Constitution, it was agreed that domestic relations would remain the domain of the states. This was practical not only because regulating family and household matters was understood to belong to the states police powers but also because domestic relations included slavery. Maynard v. Hill, 125 U.S. 190, 210-13 (1888) (quoting Adams v. Palmer, 51 Me. 481, 483 (1866)). 8 HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS 425-27 (2d ed. 1988, 2d prtg. 2002).
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Slavery and the slave trade were among the most divisive issues at the constitutional convention, where it was essential to reach agreement. The premise of state jurisdiction over domestic relations enabled states whose populations differed in values and practices to control local matters while joining together under federal government. This core feature of federalism underlay national unity as the U.S. Constitution was created.9 Subsequently, regional and cultural differences and state legislators priorities resulted in a changing patchwork of marriage rules across the nation. Although married couples movements between states with differing definitions of a valid marriage created some conflicts, the patchwork system worked because of a tradition of comity. There was strong incentive to accept couples who had married in one state as married in another: not doing so would throw property ownership and transmission into question and undo childrens legitimacy. State and federal courts within the U.S. generally followed the law of nations principle that a marriage valid where it was celebrated was valid everywhere unless the receiving states public policy directly opposed it.10 That principle allowed the states that

See COTT, supra n. 2, at 77-104. No discussion of domestic relations other than slavery occurred during the constitutional convention, indicating that state jurisdiction was presumed. 10 See JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, 113 at 103-4, 113a at 104, 117 at 108, 121 at 113-14 (2d ed. 1841) (polygamous marriages, criminal in the American states, would not be honored even though valid where celebrated); Michael Grossberg, Crossing Boundaries: Nineteenth-Century
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nullified marriage across the color line, for example, to refuse to credit couples thus married in another state before the Supreme Court dismantled all racial restrictions as violations of the 14th Amendment.11 As will be discussed (Sec. IV infra), throughout U.S. history, federal government operations relied on states definitions of marital status regardless of the extent of variance and resultant lack of uniformity on many counts. II. The Federal Governments Exceptional Actions Congress has involved itself directly in making or breaking marriages only in exceptional situations where there was no state with jurisdiction to regulate marriage. These illustrate, by their uniqueness, the historical consistency of state jurisdiction over marital status. A. Civil War and Reconstruction

A signal mark of slaves lack of freedom was their exclusion from legal marriage. Deprived of all civil rights, slaves lacked the ability to consent to marriage; they lacked the power to fulfill marital obligations since their masters could always supervene. A slave wedding meant nothing to the state government where the couple resided; that absence of public authorization was the very essence of the unions legal invalidity. During Congressional debate on the proposed 13th

Domestic Relations Law and the Merger of Family and Legal History, 1985 AM. B. FOUND. RES. J. 799, 819-26 (1985). 11 Loving v. Virginia, 388 U.S. 1 (1967).
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Amendment to eliminate slavery, more than one Northern speaker noted disparagingly that no Confederate state honored the relation of husband and wife among slaves, save only so far as the master may be pleased to regard it.12 As the Union Army marched south, Confederate states crumbled. In the spring of 1864, a Union military edict authorized the clergy in the U.S. army to perform marriages for slaves who had fled to freedom behind Union lines in U.S.-occupied areas where state authority did not exist. Ex-slave recruits welcomed the ability to marry; it was a civil right long denied them. An army chaplain in Mississippi remarked on the very decided improvement in the social and domestic feelings of those married by the authority and protection of Law. It causes them to feel that they are beginning to be regarded and treated as human beings.13 Direct federal involvement in creating marriages among ex-slaves was the exceptional result of a devastating Civil War that left no state governments in the occupied South. In the Union Armys contraband camps where ex-slaves fled, the Secretary of War announced that couples who wished to cohabit would have to be legally married. During Reconstruction, the newly formed and temporary U.S. Freedmens Bureau took power in the occupied South and regulated marriage

12 13

CONG. GLOBE 38th Cong., 1st Sess. 1324, 1369, 1479 (1864). COTT, supra n. 2, at 82-84; Laura F. Edwards, The Marriage Covenant Is at the Foundation of All Our Rights, 14 LAW & HIST. REV. 90 (1996).
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there.14 As soon as Southern state governments were reconstituted, the Freedmens Bureau ceded its authority; states resumed their jurisdiction over marriage law, subject, however, to the authority of the 14th Amendment, ratified in 1868. B. Polygamy in the Utah Territory

Another revealing example of federal action comes from the 19th-century campaign to eliminate polygamy as practiced by the Church of Jesus Christ of Latter-Day Saints (LDS Church). The Mormons had moved to the Utah Territory, and in 1862 Congress outlawed bigamy there and in all other federal territories.15 Constitutionally, Congress had the same plenary powers over marriage in federal territories that states had in their domains. Federal anti-polygamy legislation applied only to federal territories. Congress acted not only because polygamy on the North American continent seemed loathsome, but because Utahs intent to apply for statehood loomed on the horizon. Alert to constitutional limits on federal power over domestic relations, Congress knew that it would have no power to define marriage in Utah once it obtained statehood. Federal authorities exerted extreme pressure on the LDS In 1865 the Bureau issued Marriage Rules intended to correct, as far as possible, one of the most cruel wrongs inflicted by slavery. COTT, supra n. 2, at 80-95. 15 Morrill Act, ch.126, 1-3, 12 Stat. 501, 501-02 (1862). In 1874, Congress addressed divorce within the territories. See Poland Act, ch. 469, 3, 18 Stat. 253, 253-54 (1874); Edmunds-Tucker Act, ch. 397, 24 Stat. 635, 635-39 (1887) (codified 28 U.S.C. 633, 660) (repealed in 1978); SARAH BARRINGER GORDON supra n. 2, at 81-83.
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Church for decades to force abandonment of polygamy. Further, Congress required Utahs state constitution to stipulate that polygamy was forever prohibited before Utah could be admitted into the union.16 The 19th-century anti-polygamy laws in federal territory, like federal authorization of ex-slave marriages in the occupied South during Reconstruction, were unique and limited actions that showed Congresss respect for states constitutional authority to define marriage. III. States Several Purposes in Civil Marriage Throughout U.S. history, marriage has served numerous complementary public purposes. Among these purposes are: to facilitate the states governance of the population; to create stable households; to foster social order; to increase economic benefit to individuals and minimize public support of the indigent or vulnerable; to legitimate children; to assign providers to care for dependents (including the very young, the very old, and the disabled); to facilitate the ownership and inheritance of property; and to compose the body politic.17 A. Governing through Marriage

Historically, marriage has been closely intertwined with sovereigns aim to govern. When monarchs in Britain and Europe fought to wrest control over UTAH CONST. art III, 1; GORDON, supra n. 2, at 164-181; GROSSBERG, supra n. 2, at 120-29; COTT, supra n. 2, at 111-20. 17 COTT, supra n. 2, at 2, 11-12, 52-53, 190-194, 221-224; GROSSBERG, supra n. 2, at 204-05 (legitimization of children).
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marriage from ecclesiastical authorities (circa 1500-1800), they did so because they used marriage as a vehicle through which to govern the population. AngloAmerican legal doctrine (continuing into the era of American independence) made married men into heads of their households. Husbands as household heads were regarded as delegates of the sovereign, obligated to govern and support their wives and all other dependents, and be their public representative. Therefore, laws concerning who could marry whom, in what way, and setting the specific duties of the relationship, formed important dimensions of states authority over their populations.18 B. Economic Dimensions

Marriage-based households were the fundamental economic units in early America, requiring both men and women, who played differing but equally indispensable roles in the production of food, clothing and shelter. Under the Anglo-American common law of coverture (marital unity), the husband owned his wifes property and labor, and she had to obey him. The husband as head of household was responsible in all ways for his wife and all other household dependents, whether biologically related (children or relatives) or not (orphans,

18

COTT, supra n. 2, at 10-16; see also Mary L. Shanley, Marriage Contract and Social Contract in 17th-Century English Political Thought, in THE FAMILY IN POLITICAL THOUGHT (J.B. Elshtain ed., 1982).
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apprentices, servants and slaves).19 Examination of historical evidence suggest how crucial was this governance function of marriage around the time of the American Revolution, since roughly 80% of the thirteen colonies population were legal dependents of male heads of household.20 The coverture principle of the wifes subordination to her husband is now gone, as is the husbands function as a delegate of the sovereign and modern household economies no longer dictate sex-differentiated work roles but governments in all the states still obligate a married couple to take responsibility for each others and their dependents support and well-being. State governments minimize public expense by enforcing the economic obligations of marriage.21 State laws have purposely bundled social approbation and economic advantage into marriage, along with legal obligations, to encourage couples to create longlasting rather than transient relationships and build households upon them, whether or not those relationships resulted in children. States encourage marriage and offer financial advantages to married couples on the premise that maritally-organized households promise social stability and economic benefit to the public. The economic dimensions of marriage have involved government benefits more extensively since the mid-twentieth century. The federal government began COTT, supra n. 2, at 11-12, 79-81; GROSSBERG, supra n. 2, at 24-27. Carole Shammas, Anglo-American Household Government in Comparative Perspective, 52 WM. & MARY Q. 104, 123 (1995) (the figure of 80% is from 1774). 21 Id. at 221-223; GROSSBERG, supra n. 2, at 24-30; CLARK, supra n. 8, at 343-416.
20
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to take a more active role in citizens economic security during the Great Depression; Congress greatly expanded programs dispensing federal benefits through spousal relationships. The pattern of federal reliance on marital relationships began much earlier, however, during the Revolutionary War, when the Continental Congress awarded pensions to the widows and orphans of officers who died serving the new nation. These pensions and all military pensions and survivors benefits to follow intended to shore up the norm of the male head of household carrying out (even after death) his responsibility for his dependents. Federal benefits thus were premised on marital households being an economic unit basic to social welfare.22 Federal benefits channeled through spousal relationships became a persistent American norm, even as social change brought states to eliminate coverture and establish equalitarian and gender-neutral requirements in place of gender-based asymmetical marital roles.23 (See Sec. V infra.) Today, the federal government uses spousal relationships as the route to veterans pensions, Social Security

Soon afterward, pensions were extended to servicemen. National Archives and Records Service, General Services Administration, REVOLUTIONARY WAR PENSION AND BOUNTYLAND-WARRANT APPLICATION FILES, National Archives Microfilm Publications, Pamphlet Describing M804 (Washington, D.C., 1974), available at http://www.footnote.com/pdf/M804.pdf. 23 Since the 1970s, the pensions have been gender neutral. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); ALICE KESSLER-HARRIS, supra n. 2 at 56-159 (2001); COTT, supra n. 2, at 172-179; THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 103-151 (1992).
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payments, and citizenship and naturalization advantages as well as other important benefits, where some other nations allot benefits to individuals regardless of marriage.24 This extensive channeling makes legal marriage all the more valuable to couples. Indeed, federal benefits added to state-level advantages provide strong incentives to marry rather than to cohabit. With DOMA in place, however, samesex couples married validly in their states are deprived not only of federal married status, but also of extensive financial advantages available to other married couples. Before DOMA existed, the federal government accepted states determinations of who was validly married no matter how far states criteria for validity diverged from one other. BLAG, in arguing that Congress acted rationally in deciding to define marriage for federal purposes as between a man and a woman (when potential for a state to license marriage between two parties of the same sex appeared on the horizon), ignores two centuries of federal practice of accommodating states diversity of criteria for entering marriage. (Sec. IV infra.)

Cf. Turner v. Safley, 482 U.S. 78, 96 (1987) (voiding restriction on prison inmate marriages in part because marital status often is a precondition to the receipt of government benefits).
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C.

Supporting Children

Brief for Defendant-Appellant The Bipartisan Legal Advisor Group of the United States House of Representatives (BLAGs brief, at 48) also emphasizes a government interest in responsible procreation. As the foregoing historical review of states interest in the economic and social values of marriage indicates, however, states intentions in regulating marriage have been far less focused on procreation (which was assumed to take place with or without legal marriage) than on securing responsible adults support and protection for children born.25 The ability or willingness of couples to produce progeny has never been required or necessary to marry under the law of any American state. No state ever barred women past menopause from marrying, or allowed a husband to divorce his wife because she was past childbearing age. Men or women known to be sterile have not been prevented from marrying. Nor could a marriage be annulled for an inability to bear or beget children.26

Thus BLAGs brief (49, at n. 19), in quoting BLACKSTONEs COMMENTARIES on the duty of parents to provide for the maintenance of their children, and Montesquieu that the main end of marriage is the protection of infants, misses both authors explicit point that the governments interest in marriage, with regard to children, is the parents duty to support and protect (rather than to procreate). 26 3 GEORGE ELLIOTT HOWARD, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES at 3-160 (1904). While impotence, if unknown at the time of marriage, could be a ground for annulment, sterility was not. Thus state laws recognized a justifiable expectation of sexual intimacy, but not of progeny, in marriage. GROSSBERG, supra n. 2, at 108-110.
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Claims that the main purpose of marriage and the states main interest has always been to provide an optimal context for begetting and rearing biological children are normative and not historically-based.27 States in the past credited and encouraged marriages whether or not biological children would result from them, so long as the couple marrying met the states criteria for entering marriage. In the longer past, marriages in which stepfathers and/or stepmothers took responsibility for non-biological children were quite common, because of early and unpredictable deaths of biological parents, and widows and widowers remarriages. Families frequently housed orphaned relatives.28 States today continue to see marriage serving economic and social purposes not tied to biological relationships. In 2010 only 21% of American households are composed of a married couple and their minor children.29 In our post-industrial age, divorced or widowed adults often marry when they are past childbearing age, usually for reasons of intimacy and stability. As life spans have lengthened, more frequent divorce has replaced death as reason for blended families not based on biological relationships. Almost all couples voluntarily restrict the number of their COTT, supra n.2, at 168-180, 206-210. Viz. the first First Family: George Washington fathered no children and was assumed to be sterile; Martha Custis brought two children from her first marriage into their household and they also later reared the children of her son, who died in the Revolutionary War. 29 Data from the 2010 Current Population Survey; see http://www.census.gov/newsroom/releases/archives/families_households/cb10174.html
28
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progeny without giving up sexual intimacy, which can be separated from reproductive consequences. With access now to reliable contraception, fertile couples with no interest in childbearing also marry. As they have throughout U.S. history, states today continue to offer the same rights and rewards, and place the same requirements, upon all couples validly married including same-sex couples where allowed whether or not they have children. DOMA, in contrast, singles out same-sex couples and robs them of their marital status at the federal level. IV. States Variation and Federal Acceptance Since its founding, the American federal republic has been committed to state jurisdiction over marriage definition. States have taken this responsibility seriously. All the states have required that marriage is a voluntary bond between a couple and a couple only, for every state prohibited bigamy30 who share sexual intimacy and mutual economic support for one another. The states' other requirements have often differed significantly, and have not been controverted at

Marital liberty of choice, as a model for the voluntary allegiance asked of citizens, was bound into American political theory during the American Revolution; likewise, following Montesquieus Spirit Of The Laws, American political culture reprobated polygamy, maintaining that marriage and government mirrored one another: monogamous marriage matched a government of consent, polygamy was always matched by despotism. This thinking underlay the fierce campaign against polygamy in the LDS Church. COTT, supra note 2, at 21-23; see supra IIB.
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the federal level (unless shown to be unconstitutional). Previous to the passage of DOMA, states varying definitions were always accepted for federal law purposes. A. Multiplicity of State Variations and Inter-State Conflicts

States differed on the age a person might consent to marriage, what degree of consanguinity was allowed, whether a white and a person of color could marry, whether certain health minima were met, how spousal roles were defined and enforced, whether specific ceremonies were required for validation and whether and how marriage might be dissolved. Even more variations could be described.31 Individual states also changed their own marital regulations significantly over time. The federal government accepted all these differences and changes, never seeking uniformity across the states in any element of marriage until the Congress passed DOMA in 1996. Although states continuously altered eligibility requirements sometimes expanding and sometimes contracting the pool of couples who might be validly married Congress did not interpose its authority. In dispensing federal benefits (such as military pensions), federal agencies examined the validity of marriages closely and, in questionable cases, referred to the couples states requirements. BLAG argues (p. 43) that one basis for DOMA was costsavings, but strain on the federal purse was never cited as a reason to override a states determination of marriage validity. Far from stating a federal rule

31

GROSSBERG, supra n. 2, at 70-74, 86-113, 144-45.

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superseding that of any state, federal authorities frequently restated state jurisdiction in the marital arena.32 Divergence began on common-law marriage, for example, when the eminent jurist Chancellor James Kent argued in 1809 that a couples intent and consent created a valid marriage under common law, even without conformity to stateprescribed ceremonies. Such irregular marriages were very common in early America. State by state, jurists and legislators decided either to accept or reject Kents model and terminology of common law marriage. Most states but not all - adopted Kents view that while consent was always necessary for marriage, formal solemnization was not.33 Similarly, states varied on allowing marriage between first cousins. This was a common practice for centuries in Europe and was accepted in some of the states, being favored by certain elites. New England and much of the South accepted firstcousin marriage but it was prohibited in the Middle and Far West.34 Many differences such as who might perform marriage ceremonies caused little controversy. Some, however, created major conflicts. Even extremely E.g., In re Tidewater Marine Towing, Inc., 785 F. 2d 1317 (5th Cir. 1986); Slessinger v. Sec. of HHS, 835 F. 2d 937 (1st Cir. 1987). 33 Fenton v. Reed, 4 Johns. 52 (NY 1809); GROSSBERG, supra n. 2, at 64-83; HOWARD, supra n. 4, at 170-185 (frequency of informal marriage). In Meister v. Moore, 96 U.S. 76 (1877) and Maryland v. Baldwin, 112 U.S. 490 (1884), the U.S. Supreme Court validated common-law marriage unless a state specifically prohibited it, thus bowing to state jurisdiction. 34 GROSSBERG, supra n. 2, at 110-113.
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divisive differences did not prompt the federal government to adopt one rather than another states policy on a particular matter as its own rule. A prime example of strong inter-state discrepancy and conflict concerned marriages between whites and nonwhites. Laws nullifying and/or criminalizing these marriages originated in the colonial Chesapeake and spread eventually to most of the early states (but not all).35 After slavery was abolished, twenty states strengthened or added laws of this sort, and many specified new prohibitions on marriages of whites to Asians or Native Americans. Individual states added, eliminated, and changed their laws of this sort repeatedly over time. In the late 1930s (when thirty states still maintained such laws), laws in one state or another prohibited Negroes, Mulattoes, Quadroons, Octoroons, Blacks, Persons of African Descent, Ethiopians, Persons of Color, Indians, Mestizos, Half-Breeds, Mongolians, Chinese, Japanese, Malays, Kanakas, Coreans, Asiatic Indians, West Indians, and Hindus from validly marrying Whites.36 Despite this welter of changing classifications, Congress raised no objection. Federal agents dispensing benefits such as military pensions for Civil War widows simply examined potential recipients marriage validity by reference to relevant state laws. No furor arose about stress on the public fisc of more expansive
35

See DAVID H. FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE 217-220 & app. (1987). 36 PEGGY PASCOE, WHAT COMES NATURALLY: MISCEGENATION LAW AND THE MAKING OF RACE IN AMERICA at 119 (2009); see GROSSBERG, supra n. 2, at 138.
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definitions of marriage validity.37 Nor was it imagined that one states controversial policy could dictate that same policy to other states. When individual states put their own public policy regarding racial restriction above comity (as they regularly did), that was considered an inter-state conflict rather than a federal matter.38 Variability in divorce grounds also generated strong inter-state and grassroots conflicts.39 States began establishing legal procedures for divorce shortly after the Revolution. Marriages at that time were most frequently broken by one spouses desertion. Such breaches of marital economic responsibilities defied states aims to create social and economic order via marriage. In prescribing limited grounds for marital dissolution and overseeing post-divorce support

GROSSBERG, supra n. 2, at 133-40; see Ex Parte Kinney, 14 F. Cas. 602, 605-06 (C.C.E.D. Va. 1879) (no federal jurisdiction to grant habeas corpus relief to white citizen of Virginia where marriage of a white person to a negro was void and punishable by two to five years imprisonment imprisoned for living with the woman whom he wed legally in the District of Columbia.). Cf. SSR 67-56, 1967 WL 2993 (after Loving, 388 U.S. 1, agency could not respect states racially-based voiding of a marriage when determining marriage validity for wifes insurance benefits). 38 See STORY, COMMENTARIES, supra n. 10, 113-1Ba, at 174-75; cf. Justice Frankfurter (in dissent) learnedly discussing state conflicts, Sherrer v. Sherrer, 334 U.S. 343, 356-77 (1948), and see generally, ANDREW KOPPLEMAN, SAME SEX DIFFERENT STATES 39-46 (Yale U. Press 2006). 39 HARTOG, supra n. 2, at 269-86.
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settlements, states underlined their interest in marriage as a means toward social stability.40 Over time, state legislatures expanded grounds for divorce. Some did so far more than others. The extent of variation by the mid-19th century horrified divorce opponents, who were aghast at liberalized grounds. Opponents were sure that venue-shopping among states would prevail, to the detriment of marriages everywhere. Indianas loose standards, for example, prompted complaints that Indianapolis in 1858 was overrun by a flock of ill-used, and ill-using, petulant, libidinous, extravagant, ill-fitting husbands and wives as a sink is overrun with the foul water of the whole house.41 Violent controversies over migratory divorce swirled for decades, without Congress stepping in to legislate a single standard.42 Greater panic followed publication of cumulative national divorce statistics in the 1890s. Pressure for tighter regulation of entry into marriage produced new restrictions, state by state, in response: longer waiting periods and higher required age, mandatory marriage licenses, eugenic-inspired disease tests, more specific or fewer grounds for divorce. Common-law marriage fell into disrepute: more and more states made prescribed ceremonies mandatory for marriage validity.43

BASCH, FRAMING, supra n. 2, at 19-42; COTT, supra n. 2, at 46-55. GLENDA RILEY, DIVORCE: AN AMERICAN TRADITION 65 (1991) (quoting INDIANAPOLIS DAILY JOURNAL); COTT, supra n. 2, at 50-52. 42 BASCH, FRAMING, supra n. 2, at 90-92, 100-102; COTT, supra n. 2, at 105-111. 43 GROSSBERG, supra n. 2, at 83-102, 140-52.
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Even in the midst of frequent state alterations in marriage entry requirements, Congress did not enter the realm of state jurisdiction to define a federal standard for any marital feature. In marital diversity the states functioned as laboratories of change, in the metaphor of Justice Louis Brandeis.44 So long as states observed constitutional bounds, the states experimented without federal interference. B. Federal deference to state determinations

Historical evidence shows that the federal agencies always dealt with interstate differences by assessing the relevant state laws and deciding which state law pertained to a given marriage. Overall, the federal government deferred to state law definitions. With regard to the divisive issue of cross-racial marriage, federal courts demurred, e.g. in 1879 in Ex Parte Kinney: Congress has made no law relating to marriage. It has no constitutional power to make laws affecting the domestic relations . If it were to make such a law for the states, that law would be unconstitutional .45 On the long-continuing, repeated issue of spouses eligibility for federal pensions, the rule was set in 1882 and continued: The question for us is, Does the law of the place of domicil concede that they are married? Each case must rest entirely upon the law of the place in which it

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 45 14 F. Cas. at 605-06.
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arises Because a marriage is lawful in one State it by no means follows that it is lawful in another State.46 Soon after the Social Security Act promised old-age pensions to surviving spouses, a legal scholar alighted on the need to examine common-law marriage claims carefully, clarifying that the [Social Security] board must make two findings, both dependent on state law, before certification [of valid marriage] can be made. 47 The U.S. Supreme Court in 1940, in noting the necessity for an examination of local law to determine the marital status in regard to federal tax obligations, saw no conflict between a uniform construction of national application in the federal income tax and Congress making it dependent on state law.48

DECISIONS OF THE DEPARTMENT OF THE INTERIOR IN APPEALED PENSION AND BOUNTY-LAND CLAIMS, John W. Bixler, ed., U.S. Dept. of the Interior, vol. XIX (1887-1930), Washington : G.P.O. , 331-32, viewed at http://www.llmcdigital.org.ezpprod1.hul.harvard.edu/docdisplay.aspx?textid=17388175 47 That is, the state in question had to validate common-law marriage, and the applicant had to meet its conditions. James P. Lynch, Social Security Encounters Common-Law Marriage in North Carolina, 16 N.C. L REV. 255, 257 (1937-38) (italics in original). Cf. Cunningham v. Appel, 12 Fed. Appx 361 (2001) (validity of common law marriage for Social Security benefit is governed by the laws of the state where the decedent had a permanent home when he died); Rev. Rul. 5866, 1958-1 C.B. Federal regulations now allow that when a marriages validity is imperfect under state law because of a legal impediment not known to an applicant for Social Security benefits acting in good faith, the federal agency may deem the marriage valid. Federal creation of this category and phrase deemed valid marriage acknowledged that federal authority cannot create a valid marriage. 20 C.F.R. 404.346. 48 Helvering v. Fuller, 310 U.S. 69, 74-75 (1967).
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In every operation of every federal policy touching married couples before DOMA, the relevant agency looked to state law. State marital diversity reigned, and conflicts were resolved within American federalism. States did not extend comity to marriage not comporting with their own public policy. Differences among states became structural features of American law and practice, always accepted if not fully welcomed. Prior to DOMA, where states disagreed, Congress did not pre-empt states policies in the name of federal uniformity or fiscal austerity. V. Change and Continuity into the Present Marriage has not remained static. Over centuries of our nations history, state legislatures and courts have continuously reviewed and refined marriage criteria, in order to keep marriage a vital institution aligned with changing standards. Significant shifts in social and sexual mores as well as in the economy have compelled states to revisit and adjust earlier marriage rules. From the 18th through the mid-20th century, state marriage laws enforced asymmetrical and unequal gender roles (through differing marital requirements for husbands and wives) and racial hierarchy (through race-based marriage proscriptions). Every state established its own varying details on these matters, without federal interposition. These features now, of course, so easily censurable began to be altered by various states. Evolving views of gender and race equality,
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moving some state legislatures and courts toward change, led eventually to reinterpretation of the 14th Amendments applicability by the Supreme Court.49 From todays perspective, this evolution toward symmetrical marital roles and cross-race freedom to marry may seem obvious or inevitable. Nonetheless, alterations in these directions were extremely divisive when they were initially introduced; opponents called them blasphemous and unnatural, and, more important, claimed they utterly defied and undid the essential meaning of marriage. Yet state legislators and courts used their power over marriage definition to enable change. State authorities responded to economic pressures and womens rights complaints by eliminating coverture (in stages), even though opponents strenuously objected that this marital unity doctrine, subsuming a wifes legal and economic individuality under her husbands power, had centrally defined marriage for many centuries.50 The demise of coverture was not complete until feminist suits in the 1970s brought state and federal court reinterpretation of sex discrimination.51 States rapid adoption of no-fault divorce (beginning with Californias move in

Viz. Loving, 388 U.S. 1 (1967); Weinberger, 420 U.S. 636; Califano v. Goldfarb, 430 U.S. 199 (1977); Orr v. Orr, 440 U.S. 268 (1979). 50 BASCH, IN THE EYES, supra n. 2; Richard H. Chused, Married Womens Property Law: 1800-1850, 71 GEO. L.J. 1359 (1983); Reva Siegel, The Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930, 82 GEO. L.J. 2127 (1994). 51 KESSLER-HARRIS, supra n. 2, at 117-129.
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1969) then converged to re-emphasize the centrality of individual liberty in marriage, as states gave spouses freedom to make their own judgments of marriage satisfaction or breakdown. Yet because states retained their economic interest in marriage, they did not let up on their control over the legalities of divorce and postdivorce settlements.52 In analogous fashion, bans on marriage across the color line, which had for centuries been loudly endorsed as natural, Gods plan, not discriminatory on any race, and required for U.S. national integrity, fell out of favor. Californias Supreme Court led the way in 1948 in overturning that states ban (established in 1851).53 Fifteen more states followed in the next two decades.54 In 1967, the U.S. Supreme Court newly interpreted such state proscriptions, calling them props for white supremacy and an unconstitutional denial of equal protection.55 In altering what were seen as essential criteria for marriage, states varied in pattern and pace. Substantial differences among them resulted at every step. Nonetheless, all along, subject only to constitutional limitations every states stipulations were respected for federal purposes until DOMA. The variations troubled some citizens, however. A movement formed in the 1880s to push for
52

COTT, supra n. 2, at 195-196, 205-210; STEPHEN D. SUGARMAN AND HERMA HILL KAY, ED., DIVORCE REFORM AT THE CROSSROADS (1990); MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987), 66-67. 53 Perez v. Sharp, 198 P.2d 17 (Cal. 1948). 54 GROSSBERG, supra n. 2, at 126-140; PASCOE, supra n. 33 at 205-284. 55 Loving, 388 U.S. 2.
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uniform national standards for marriage and divorce. Scores of proposals went through Congress aiming to amend the U.S. Constitution to permit federal creation of uniformity. Not one ever passed.56 The repeated failures showed strong majority support for retaining the existing constitutional allocation of powers.57 CONCLUSION Amici support the position of Appellees, because DOMA breaks with historical understanding of the state and federal roles with respect to marriage. For sound reasons fundamental to our federal system, marital status definition has been left to the states (operating within constitutional bounds). Despite the significant diversity resulting, history shows no precedent for Congressional pre-emption of marital definition for all federal purposes, on grounds of requisite uniformity or any other ground. The decision of the District Court striking down DOMA should be affirmed.

See Sherrer, 334 U.S. at 364 n.13 (Frankfurter, J., dissenting) (noting over seventy such amendments proposed and rejected since the 1880s); RILEY, supra n. 43, at 111, 117; Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L.Q., 611, 625-26 (2004). 57 Even the alternative approach of the uniform statute movement, which drafted model statutes for states to consider adopting voluntarily, has never made headway with marriage and divorce. See NELSON BLAKE, THE ROAD TO RENO: A HISTORY OF DIVORCE IN THE UNITED STATES 130-51 (1962); RILEY, supra n. 43, at 108-29.
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DATED: September 7, 2012

Respectfully submitted,

/s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389 Attorney for Amici Curiae Historians

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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULES OF APPELLATE PROCEDURES 29(d) AND 32(a) The type-volume limitation of Fed. R. App. P. 32(a)(7)(B) imposes a 14,000 word limitation on a partys principal brief. Pursuant to Fed. R. App. P. 29(d), an amicus brief may be no more than one-half the length authorized for a partys principal brief. This brief complies with Rules 29(d) and 32(a)(7)(B) because it contains 6965 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). September 7, 2012 Respectfully submitted, /s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system on September 7, 2012. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: September 7, 2012 /s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389

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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT EDITH SCHLAIN WINDSOR, In Her Official Capacity as Executor of the Estate of Thea Clara Spyer, Plaintiff-Appellee, v. UNITED STATES OF AMERICA Defendant-Appellant and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York, Case No. 10-civ-8435 BRIEF OF AMICI CURIAE HISTORIANS PETER W. BARDAGLIO NORMA BASCH STEPHANIE COONTZ TOBY L. DITZ ARIELA DUBLER LAURA F. EDWARDS ESTELLE B. FREEDMAN SARAH BARRINGER GORDON MICHAEL GROSSBERG HENDRIK HARTOG ELLEN HERMAN MARTHA HODES LINDA K. KERBER ALICE KESSLER-HARRIS ELAINE TYLER MAY STEVEN MINTZ ELIZABETH H. PLECK CAROLE SHAMMAS MARY L. SHANLEY AMY DRU STANLEY BARBARA YOUNG WELKE IN SUPPORT OF APPELLEE AND OF AFFIRMANCE OF THE JUDGMENT BELOW Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389 Attorney for Amici Curiae
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LIST OF AMICI CURIAE Steven Mintz Michael Grossberg Peter W. Bardaglio Sally M. Reahard Professor of Executive Director of the Senior Fellow Institute for History & Professor of Second Nature Transformative Learning Law Formerly Professor of History University of Texas System Indiana University Ithaca College Elizabeth H. Pleck Hendrik Hartog Professor of History Class of 1921 Bicentennial Professor in the History of University of Illinois, Urbana/Champaign, American Law Emerita and Liberty Stephanie Coontz Princeton University Professor of History and Family Studies Carole Shammas John R. Hubbard Chair in The Evergreen State College Ellen Herman History Emerita Professor of History University of Southern University of Oregon Toby L. Ditz California Professor of History Johns Hopkins University Martha Hodes Professor of History Mary L. Shanley Margaret Stiles Halleck New York University Ariela R. Dubler Professor of Social George Welwood Murray Professor of Legal History Linda K. Kerber Science May Brodbeck Professor Columbia Law School Vassar College in the Liberal Arts and Professor of History, Laura F. Edwards Amy Dru Stanley Lecturer in Law Professor of History Associate Professor of University of Iowa Duke University History University of Chicago Alice Kessler-Harris Estelle B. Freedman Edgar E. Robinson Professor R. Gordon Hoxie Professor Barbara Young Welke of History in U.S. History Professor of History and Columbia University Stanford University Professor of Law University of Minnesota Elaine Tyler May Sarah Barringer Gordon Regents Professor of Arlin M. Adams Professor American Studies and of Constitutional Law History and Professor of History University of Minnesota University of Pennsylvania Norma Basch Professor Emerita Rutgers University

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(C)(4) ............................................................................................. 1 SUMMARY OF THE ARGUMENT ........................................................................ 3 ARGUMENT ............................................................................................................. 5 I. Valid Marriage as a Legal Status Created by the States ....................... 5 A. B. II. Civil Authorization .....................................................................5 Exclusive State Control...............................................................6

The Federal Governments Exceptional Actions .................................. 8 A. B. Civil War and Reconstruction.....................................................8 Polygamy in the Utah Territory ................................................10

III. States Several Purposes in Civil Marriage ......................................... 11 A. B. C. IV. Governing through Marriage ....................................................12 Economic Dimensions ..............................................................12 Supporting Children ..................................................................16

States Variation and Federal Acceptance .......................................... 18 A. B. Multiplicity of State Variations and Inter-State Conflicts ........19 Federal deference to state determinations .................................24

V.

Change and Continuity into the Present .............................................. 26

CONCLUSION ........................................................................................................ 29 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULES OF APPELLATE PROCEDURES 29(d) AND 32(a) ................................................... 31

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Page CERTIFICATE OF SERVICE ................................................................................ 32

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TABLE OF AUTHORITIES Page CASES Adams v. Palmer, 51 Me. 481 (1866) ...........................................................................................6 Califano v. Goldfarb, 430 U.S. 199 (1977).......................................................................................27 Cunningham v. Appel, 12 Fed. Appx 361 (2001) ...............................................................................25 Ex Parte Kinney, 14 F. Cas. 602 (C.C.E.D. Va. 1879) ....................................................... 22, 24 Fenton v. Reed, 4 Johns. 52 (NY 1809) ...................................................................................20 Helvering v. Fuller, 310 U.S. 69 (1967).........................................................................................25 In re Tidewater Marine Towing, Inc., 785 F. 2d 1317 (5th Cir. 1986) ......................................................................20 Loving v. Virginia, 388 U.S. 1 (1967).......................................................................... 8, 22, 27, 28 Maryland v. Baldwin, 112 U.S. 490 (1884).......................................................................................20 Maynard v. Hill, 125 U.S. 190 (1888).........................................................................................6 Meister v. Moore, 96 U.S. 76 (1877)...........................................................................................20 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).......................................................................................24 Orr v. Orr, 440 U.S. 268 (1979).......................................................................................27

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Page Perez v. Sharp, 198 P.2d 17 (Cal. 1948) .................................................................................28 Sherrer v. Sherrer, 334 U.S. 343 (1948)................................................................................ 22, 29 Slessinger v. Sec. of HHS, 835 F. 2d 937 (1st Cir. 1987).........................................................................20 Turner v. Safley, 482 U.S. 78 (1987).........................................................................................15 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)................................................................................ 14, 27 STATUTES, RULES AND REGULATIONS 20 C.F.R. 404.346 .................................................................................................25 Defense of Marriage Act, PUB. L. NO. 104-99; 1 U.S.C. 7 .......................... passim Edmunds-Tucker Act, ch. 397, 24 Stat. 635, 635-39 (1887) (codified 28 U.S.C. 633, 660) (repealed in 1978) .........................................................10 Morrill Act, ch.126, 1-3, 12 Stat. 501, 501-02 (1862) .........................................10 Poland Act, ch. 469, 3, 18 Stat. 253, 253-54 (1874) ............................................10 Rev. Rul. 58-66, 1958-1 C.B. 60 .............................................................................25 SSR 67-56, 1967 WL 2993 ......................................................................................22 U.S. Const. amend. XIV ............................................................................... 8, 10, 27 UTAH CONST. art III, 1 ...........................................................................................11 OTHER AUTHORITIES 1 HOWARD, GEORGE ELLIOTT, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES (1904) ............................ 5, 20 2010 Current Population Survey; see http://www.census.gov/newsroom/releases/archives/families_househo lds/cb10-174.html ..........................................................................................17
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Page 3 HOWARD, GEORGE ELLIOTT, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES (1904) .................................16 BARDAGLIO, PETER W., RECONSTRUCTING THE HOUSEHOLD: FAMILIES, SEX, AND THE LAW IN THE NINETEENTH-CENTURY SOUTH (1995) ..........................1 BASCH, NORMA, FRAMING AMERICAN DIVORCE (1999) ..................................... 1, 23 BASCH, NORMA, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN 19TH CENTURY NEW YORK (1982) ....................................... 1, 27 BLACKSTONE, WILLIAM, COMMENTARIES ON THE LAWS OF ENGLAND ....................16 BLAKE, NELSON, THE ROAD TO RENO: A HISTORY OF DIVORCE IN THE UNITED STATES (1962)...................................................................................29 Chused, Richard H., Married Womens Property Law: 1800-1850, 71 GEO. L.J. 1359 (1983) .............................................................................................27 CLARK, JR., HOMER H., THE LAW OF DOMESTIC RELATIONS (2d ed. 1988, 2d prtg. 2002)................................................................................................. 6, 13 CONG. GLOBE 38th Cong., 1st Sess. 1324 (1864) ......................................................9 COONTZ, STEPHANIE, MARRIAGE, A HISTORY (2006) ................................................1 COONTZ, STEPHANIE, THE SOCIAL ORIGINS OF PRIVATE LIFE: A HISTORY OF AMERICAN FAMILIES, 1600-1900 (1988) .........................................................1 COTT, NANCY F., PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000) ..................................................................................................... passim
DE SECONDAT, CHARLES (BARON DE MONTESQUIEU),

SPIRIT OF THE LAWS (1748) ...................................................................................................... 16, 18

DECISIONS OF THE DEPARTMENT OF THE INTERIOR IN APPEALED PENSION AND BOUNTY-LAND CLAIMS (John W. Bixler, ed., United States Dept. of the Interior, vol. XIX (1887-1930) ................................................................25 DITZ, TOBY L., PROPERTY AND KINSHIP: INHERITANCE IN EARLY CONNECTICUT (1986) .......................................................................................1

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Page Dubler, Ariela, Governing Through Contract: Common Law Marriage in the 19th Century, 107 YALE L. J. 1885 (1998) .......................................................1 Dubler, Ariela, Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957 (2000).............................................................................2 EDWARDS, LAURA F., GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF RECONSTRUCTION (1997) ............................................................2 Edwards, Laura F., The Marriage Covenant Is at the Foundation of All Our Rights, 14 LAW & HIST. REV. 90 (1996)..........................................................9 FOWLER, DAVID H., NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE (1987) ..........................................................................................21 FREEDMAN, ESTELLE B. AND JOHN DEMILIO, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA (2d ed. 1997) .........................................2 GLENDON, MARY ANN, ABORTION AND DIVORCE IN WESTERN LAW (1987) ...........28 GORDON, SARAH BARRINGER, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH CENTURY AMERICA (2002) .................................................................................................. 2, 10, 11 Grossberg, Michael, Crossing Boundaries: Nineteenth-Century Domestic Relations Law and the Merger of Family and Legal History, 1985 AM. B. FOUND. RES. J. 799 (1985) ..........................................................................8 GROSSBERG, MICHAEL, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA (1985) .............................................. passim HARTOG, HENDRIK, MAN & WIFE IN AMERICA, A HISTORY (2000) ................... 2, 22 HERMAN, ELLEN, KINSHIP BY DESIGN: A HISTORY OF ADOPTION IN THE MODERN UNITED STATES (2008) .....................................................................2 HODES, MARTHA, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE 19TH CENTURY SOUTH (1997) ...........................................................................2 KERBER, LINDA K., NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998) ........................................................2

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Page KESSLER-HARRIS, ALICE, IN PURSUIT OF EQUITY: WOMEN, MEN, AND THE QUEST FOR EXONOMIC CITIZENSHIP IN 20TH-CENTURY AMERICA (2001) .................................................................................................. 2, 15, 27 KOPPLEMAN, ANDREW, SAME SEX DIFFERENT STATES (Yale U. Press 2006) .........22 Lynch, James P., Social Security Encounters Common-Law Marriage in North Carolina, 16 N.C. L REV. 255 (1937-38) ............................................25 May, ELAINE TYLER, BARREN IN THE PROMISED LAND (1996) ..................................2 MAY, ELAINE TYLER, HOMEWARD BOUND: AMERICAN FAMILIES IN THE COLD WAR ERA (2008) ..............................................................................................2 MINTZ, STEVEN, DOMESTIC REVOLUTIONS: A SOCIAL HISTORY OF AMERICAN FAMILY LIFE (1988) .........................................................................................2 National Archives and Records Service, General Services Administration, REVOLUTIONARY WAR PENSION AND BOUNTYLAND-WARRANT APPLICATION FILES, National Archives Microfilm Publications, Pamphlet Describing M804 (Washington, D.C., 1974), available at http://www.footnote.com/pdf/M804.pdf ...................................14 PASCOE, PEGGY, WHAT COMES NATURALLY: MISCEGENATION LAW AND THE MAKING OF RACE IN AMERICA (2009) .................................................... 21, 28 PLECK, ELIZABETH H., CELEBRATING THE FAMILY: ETHNICITY, CONSUMER CULTURE, AND FAMILY RITUALS (2001) ..........................................................2 RILEY, GLENDA, DIVORCE: AN AMERICAN TRADITION 65 (1991) .................... 23, 29 SHAMMAS, CAROLE, A HISTORY OF HOUSEHOLD GOVERNMENT IN AMERICA (2002) ...............................................................................................................2 Shammas, Carole, Anglo-American Household Government in Comparative Perspective, 52 WM. & MARY Q. 104 (1995)................................................13 SHANLEY, MARY L., FEMINISM, MARRIAGE AND THE LAW IN VICTORIAN ENGLAND (1989) ..............................................................................................2 SHANLEY, MARY L., MAKING BABIES, MAKING FAMILIES (2001) .............................2

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Page Shanley, Mary L., Marriage Contract and Social Contract in 17th-Century English Political Thought, in THE FAMILY IN POLITICAL THOUGHT (J.B. Elshtain ed., 1982) ................................................................................12 Siegel, Reva, The Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930, 82 GEO. L.J. 2127 (1994) ...............27 SKOCPOL, THEDA, PROTECTING SOLDIERS AND MOTHERS (1992) ...........................15 STANLEY, AMY DRU, FROM BONDAGE TO CONTRACT: WAGE LABOR, MARRIAGE AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION (1998) ...............................................................................................................2 Stein, Edward, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L.Q. 611 (2004) ...............29 STORY, JOSEPH, COMMENTARIES ON THE CONFLICT OF LAWS (2d ed. 1841) ...... 7, 22 SUGARMAN, STEPHEN D. AND KAY, HERMA HILL, ED., DIVORCE REFORM AT THE CROSSROADS (1990)................................................................................28 WELKE, BARBARA YOUNG, LAW AND THE BORDERS OF BELONGING IN THE LONG NINETEENTH CENTURY UNITED STATES (2010) .....................................2

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STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29(C)(4)1 Amici are historians of American marriage, family and law, whose research documents how the institution of marriage has functioned and changed over time. Our brief aims to provide accurate historical perspective as the Court inquires into state and federal purposes for marriage and relative prerogatives in defining marital status. Amici support Appellees position that the Defense of Marriage Act (DOMA) is historically unprecedented: until DOMA was passed, the federal government consistently deferred to state determinations of marital status, even while significant marriage policies differed in various states. Moreover, Amici disagree with Appellants contention that the core governmental purpose of marriage is to foster procreation, since states have always had several key purposes in establishing and regulating marital unions.2

Amici and counsel for Amici authored this Brief in whole, with the assistance of Professor George Chauncey, Yale University and Professor Nancy F. Cott, Harvard University. No party or partys counsel contributed money intended to fund preparing or submitting this Brief. No person other than amici curiae or counsel contributed money intended to fund preparing or submitting the Brief. 2 This brief is based on amicis decades of study and research. Amici are the authors of the principal scholarly work in the relevant fields, including: PETER W. BARDAGLIO, RECONSTRUCTING THE HOUSEHOLD: FAMILIES, SEX, AND THE LAW IN THE NINETEENTH-CENTURY SOUTH (1995); NORMA BASCH, FRAMING AMERICAN DIVORCE (1999) and IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY TH IN 19 CENTURY NEW YORK (1982); STEPHANIE COONTZ, THE SOCIAL ORIGINS OF PRIVATE LIFE: A HISTORY OF AMERICAN FAMILIES, 1600-1900 (1988); MARRIAGE, A HISTORY (2006); TOBY L. DITZ, PROPERTY AND KINSHIP: INHERITANCE IN EARLY CONNECTICUT (1986); Ariela Dubler, Governing Through Contract: Common Law
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Plaintiff-Appellee and Defendant-Appellant United States have consented to the filing of this brief. It is unclear whether Intervenor-Defendant-Appellee Bipartisan Legal Advisory Group (BLAG) objects. See Motion to File Historians Amici Brief, n. 3. Hence, authority to file is either by consent or putative amici have filed a motion for leave to file, in accordance with F.R.App.P. 29(a).

Marriage in the 19th Century, 107 YALE L. J. 1885 (1998); Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957 (2000); LAURA F. EDWARDS, GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF RECONSTRUCTION (1997); ESTELLE B. FREEDMAN AND JOHN DEMILIO, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA (2d ed. 1997); MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTHCENTURY AMERICA (1985); SARAH BARRINGER GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH CENTURY AMERICA (2002); HENDRIK HARTOG, MAN & WIFE IN AMERICA, A HISTORY (2000); ELLEN HERMAN, KINSHIP BY DESIGN: A HISTORY OF ADOPTION IN THE MODERN UNITED STATES (2008); MARTHA HODES, WHITE WOMEN, BLACK MEN: ILLICIT SEX IN THE 19TH CENTURY SOUTH (1997); LINDA K. KERBER, NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998); ALICE KESSLER-HARRIS, IN PURSUIT OF EQUITY: WOMEN, MEN, AND THE QUEST FOR ECONOMIC CITIZENSHIP IN 20TH-CENTURY AMERICA (2001); ELAINE TYLER MAY, HOMEWARD BOUND: AMERICAN FAMILIES IN THE COLD WAR ERA (2008); BARREN IN THE PROMISED LAND (1996); STEVEN MINTZ, DOMESTIC REVOLUTIONS: A SOCIAL HISTORY OF AMERICAN FAMILY LIFE (1988); ELIZABETH H. PLECK, CELEBRATING THE FAMILY: ETHNICITY, CONSUMER CULTURE, AND FAMILY RITUALS (2001); CAROLE SHAMMAS, A HISTORY OF HOUSEHOLD GOVERNMENT IN AMERICA (2002); MARY L. SHANLEY, MAKING BABIES, MAKING FAMILIES (2001); FEMINISM, MARRIAGE AND THE LAW IN VICTORIAN ENGLAND (1989); AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR, MARRIAGE AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION (1998); BARBARA YOUNG WELKE, LAW AND THE BORDERS OF BELONGING IN THE LONG NINETEENTH CENTURY UNITED STATES (2010). Assertions in the brief are supported by this scholarship, whether or not expressly cited.
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SUMMARY OF THE ARGUMENT Control of marital status is reserved to the states in our federal system. The states have had a variety of purposes in authorizing and regulating marriage, in that the marriage contract embodies individuals free consent to enter long-lasting intimate relations, while marital households also serve to protect individuals, ensure social order and advance economic welfare. States have valued maritallybased households as benefits to public good whether or not they include biologically-related parents and children. A diversity in marriage rules resulted, and states differing standards often provoked serious contestation in the past. Significant differences among state laws prescribing who was eligible to marry whom have existed throughout American history. Some states allowed two first cousins, or young teenagers, or couples where one party was white and one was not, for example, to marry, while others nullified or criminalized such marriages. The practice of comity among the states accommodated these differences, although not without tensions: a state typically did not extend comity to marriages not comporting with its own public policy. State marital diversity reigned, and conflicts were resolved within American federalism.

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Despite state diversity throughout American history, before enactment of DOMA,3 the federal government consistently relied on the different states determinations. It did not seek a single definition for all federal purposes of any dimension of marital eligibility or status.4 Before 1996, Congress never took a position on a contested marital status preemptively so as to discredit a policy choice that a state might make. Federal agencies distributing benefits assessed the validity of any marriage by looking to the relevant state law. Since the 1880s certain reformers have advocated for a comprehensive uniform national standard for marriage and divorce, but always recognized that amending the U.S. Constitution would be required. Their efforts never succeeded, facing far stronger support for states retaining their power over marital status. In historical perspective, DOMA appears as an attempt by Congress to exercise a power it has always been understood not to have, and that the representatives of the states repeatedly refused to grant it by constitutional amendment.

PUB. L. NO. 104-99; 1 U.S.C. 7. DOMA does not, in fact, create marital uniformity for federal purposes, because it leaves in place all state variations in marital eligibility and requirements besides the gender of the couple (Sec. IV, infra).
4
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ARGUMENT I. Valid Marriage as a Legal Status Created by the States A. Civil Authorization

Marriage in all the states of the United States has historically been a civil matter. Valid marriage relies on state authorization, distinct from religious rites performed according to the dictates of any religious community. Religion, sentiment and custom enter individuals understanding of marriage in important ways, but valid marriage is a creature of law in every state. The standard of civil authority over marriage derived from colonial New England and was important at the founding of the United States because of the new nations diverse religions. Regulations for creating valid civil marriages were among the first laws established by the states after independence from Great Britain.5 As an institution based on voluntary mutual consent, marriage was and remains understood to be a contract. But it has always been a unique contract, because of the states strong role in defining marriage and prescribing its obligations and rights.6 Marriage may be joined by private consent, but its legal obligations cannot be modified or ended thereby. The state is a party to and

1 GEORGE ELLIOTT HOWARD, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES (1904) 121-226 (colonial precedents), 388-497 (early state marriage laws); see NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION at 2, 52-53 (2000). 6 COTT, supra n. 5, at 10-11.
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guarantor of the couples bond. Once marriage is entered, its rights, duties and obligations are of law, not of contract. as the Maine Supreme Judicial Court said in 1866, and this rule remains.7 For example, spouses cannot by private agreement abandon their obligation of mutual economic support.8 Until DOMA interrupted this practice, a couple validly married in a given state was always considered married at every level of government. Marital status (like citizen status) historically has changed an individuals legal persona, bearing legal meanings and consequences from the state to the national level. Wedding legally according to state-prescribed regulations transforms a couples status, giving both individuals new legal standing and distinctive obligations and rights. Over time, marriage has developed a unique social meaning. This owes in great part to the state placing its imprimatur of value on the couples choice to join in marriage, to remain committed to one another, to form a household and to join in an economic partnership to support one another. B. Exclusive State Control

During the writing of the U.S. Constitution, it was agreed that domestic relations would remain the domain of the states. This was practical not only because regulating family and household matters was understood to belong to the Maynard v. Hill, 125 U.S. 190, 210-13 (1888) (quoting Adams v. Palmer, 51 Me. 481, 483 (1866)). 8 HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS 425-27 (2d ed. 1988, 2d prtg. 2002).
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states police powers but also because domestic relations included slavery. Slavery and the slave trade were among the most divisive issues at the constitutional convention, where it was essential to reach agreement. The premise of state jurisdiction over domestic relations enabled states whose populations differed in values and practices to control local matters while joining together under federal government. This core feature of federalism underlay national unity as the U.S. Constitution was created.9 Subsequently, regional and cultural differences and state legislators priorities resulted in a changing patchwork of marriage rules across the nation. Although married couples movements between states with differing definitions of a valid marriage created some conflicts, the patchwork system worked because of a tradition of comity. There was strong incentive to accept couples who had married in one state as married in another: not doing so would throw property ownership and transmission into question and undo childrens legitimacy. State and federal courts within the U.S. generally followed the law of nations principle that a marriage valid where it was celebrated was valid everywhere unless the receiving states public policy directly opposed it.10 That principle allowed the states that

See COTT, supra n. 5, at 77-104. No discussion of domestic relations other than slavery occurred during the constitutional convention, indicating that state jurisdiction was presumed. 10 See JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, 113 at 103-4, 113a at 104, 117 at 108, 121 at 113-14 (2d ed. 1841) (polygamous marriages,
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nullified marriage across the color line, for example, to refuse to credit couples thus married in another state before the Supreme Court dismantled all racial restrictions as violations of the 14th Amendment.11 As will be discussed (Sec. IV infra), throughout U.S. history, federal government operations relied on states definitions of marital status regardless of the extent of variance and resultant lack of uniformity on many counts. II. The Federal Governments Exceptional Actions Congress has involved itself directly in making or breaking marriages only in exceptional situations where there was no state with jurisdiction to regulate marriage. These illustrate, by their uniqueness, the historical consistency of state jurisdiction over marital status. A. Civil War and Reconstruction

A signal mark of slaves lack of freedom was their exclusion from legal marriage. Deprived of all civil rights, slaves lacked the ability to consent to marriage; they lacked the power to fulfill marital obligations since their masters could always supervene. A slave wedding meant nothing to the state government where the couple resided; that absence of public authorization was the very essence

criminal in the American states, would not be honored even though valid where celebrated); Michael Grossberg, Crossing Boundaries: Nineteenth-Century Domestic Relations Law and the Merger of Family and Legal History, 1985 AM. B. FOUND. RES. J. 799, 819-26 (1985). 11 Loving v. Virginia, 388 U.S. 1 (1967).
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of the unions legal invalidity. During Congressional debate on the proposed 13th Amendment to eliminate slavery, more than one Northern speaker noted disparagingly that no Confederate state honored the relation of husband and wife among slaves, save only so far as the master may be pleased to regard it.12 As the Union Army marched south, Confederate states crumbled. In the spring of 1864, a Union military edict authorized the clergy in the U.S. army to perform marriages for slaves who had fled to freedom behind Union lines in U.S.-occupied areas where state authority did not exist. Ex-slave recruits welcomed the ability to marry; it was a civil right long denied them. An army chaplain in Mississippi remarked on the very decided improvement in the social and domestic feelings of those married by the authority and protection of Law. It causes them to feel that they are beginning to be regarded and treated as human beings.13 Direct federal involvement in creating marriages among ex-slaves was the exceptional result of a devastating Civil War that left no state governments in the occupied South. In the Union Armys contraband camps where ex-slaves fled, the Secretary of War announced that couples who wished to cohabit would have to be legally married. During Reconstruction, the newly formed and temporary

12 13

CONG. GLOBE 38th Cong., 1st Sess. 1324, 1369, 1479 (1864). COTT, supra n. 5, at 82-84; Laura F. Edwards, The Marriage Covenant Is at the Foundation of All Our Rights, 14 LAW & HIST. REV. 90 (1996).
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U.S. Freedmens Bureau took power in the occupied South and regulated marriage there.14 As soon as Southern state governments were reconstituted, the Freedmens Bureau ceded its authority; states resumed their jurisdiction over marriage law, subject, however, to the authority of the 14th Amendment, ratified in 1868. B. Polygamy in the Utah Territory

Another revealing example of federal action comes from the 19th-century campaign to eliminate polygamy as practiced by the Church of Jesus Christ of Latter-Day Saints (LDS Church). The Mormons had moved to the Utah Territory, and in 1862 Congress outlawed bigamy there and in all other federal territories.15 Constitutionally, Congress had the same plenary powers over marriage in federal territories that states had in their domains. Federal anti-polygamy legislation applied only to federal territories. Congress acted not only because polygamy on the North American continent seemed loathsome, but because Utahs intent to apply for statehood loomed on the horizon. Alert to constitutional limits on federal power over domestic relations, Congress knew that it would have no power to define marriage in Utah once it In 1865 the Bureau issued Marriage Rules intended to correct, as far as possible, one of the most cruel wrongs inflicted by slavery. COTT, supra n. 5, at 80-95. 15 Morrill Act, ch.126, 1-3, 12 Stat. 501, 501-02 (1862). In 1874, Congress addressed divorce within the territories. See Poland Act, ch. 469, 3, 18 Stat. 253, 253-54 (1874); Edmunds-Tucker Act, ch. 397, 24 Stat. 635, 635-39 (1887) (codified 28 U.S.C. 633, 660) (repealed in 1978); SARAH BARRINGER GORDON supra n. 2, at 81-83.
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obtained statehood. Federal authorities exerted extreme pressure on the LDS Church for decades to force abandonment of polygamy. Further, Congress required Utahs state constitution to stipulate that polygamy was forever prohibited before Utah could be admitted into the union.16 The 19th-century anti-polygamy laws in federal territory, like federal authorization of ex-slave marriages in the occupied South during Reconstruction, were unique and limited actions that showed Congresss respect for states constitutional authority to define marriage. III. States Several Purposes in Civil Marriage Throughout U.S. history, marriage has served numerous complementary public purposes. Among these purposes are: to facilitate the states governance of the population; to create stable households; to foster social order; to increase economic benefit to individuals and minimize public support of the indigent or vulnerable; to legitimate children; to assign providers to care for dependents (including the very young, the very old, and the disabled); to facilitate the ownership and inheritance of property; and to compose the body politic.17

UTAH CONST. art III, 1; GORDON, supra n.2, at 164-181; GROSSBERG, supra n. 2, at 120-29; COTT, supra n. 5, at 111-20. 17 COTT, supra n. 5, at 2, 11-12, 52-53, 190-194, 221-224; GROSSBERG, supra n. 2, at 204-05 (legitimization of children).
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A.

Governing through Marriage

Historically, marriage has been closely intertwined with sovereigns aim to govern. When monarchs in Britain and Europe fought to wrest control over marriage from ecclesiastical authorities (circa 1500-1800), they did so because they used marriage as a vehicle through which to govern the population. AngloAmerican legal doctrine (continuing into the era of American independence) made married men into heads of their households. Husbands as household heads were regarded as delegates of the sovereign, obligated to govern and support their wives and all other dependents, and be their public representative. Therefore, laws concerning who could marry whom, in what way, and setting the specific duties of the relationship, formed important dimensions of states authority over their populations.18 B. Economic Dimensions

Marriage-based households were the fundamental economic units in early America, requiring both men and women, who played differing but equally indispensable roles in the production of food, clothing and shelter. Under the Anglo-American common law of coverture (marital unity), the husband owned his wifes property and labor, and she had to obey him. The husband as head of

18

COTT, supra n. 5, at 10-16; see also Mary L. Shanley, Marriage Contract and Social Contract in 17th-Century English Political Thought, in THE FAMILY IN POLITICAL THOUGHT (J.B. Elshtain ed., 1982).
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household was responsible in all ways for his wife and all other household dependents, whether biologically related (children or relatives) or not (orphans, apprentices, servants and slaves).19 Examination of historical evidence suggest how crucial was this governance function of marriage around the time of the American Revolution, since roughly 80% of the thirteen colonies population were legal dependents of male heads of household.20 The coverture principle of the wifes subordination to her husband is now gone, as is the husbands function as a delegate of the sovereign and modern household economies no longer dictate sex-differentiated work roles but governments in all the states still obligate a married couple to take responsibility for each others and their dependents support and well-being. State governments minimize public expense by enforcing the economic obligations of marriage.21 State laws have purposely bundled social approbation and economic advantage into marriage, along with legal obligations, to encourage couples to create longlasting rather than transient relationships and build households upon them, whether or not those relationships resulted in children. States encourage marriage and offer financial advantages to married couples on the premise that maritally-organized households promise social stability and economic benefit to the public. COTT, supra n. 5, at 11-12, 79-81; GROSSBERG, supra n. 2, at 24-27. Carole Shammas, Anglo-American Household Government in Comparative Perspective, 52 WM. & MARY Q. 104, 123 (1995) (the figure of 80% is from 1774). 21 Id. at 221-223; GROSSBERG, supra n. 2, at 24-30; CLARK, supra n. 8, at 343-416.
20
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The economic dimensions of marriage have involved government benefits more extensively since the mid-twentieth century. The federal government began to take a more active role in citizens economic security during the Great Depression; Congress greatly expanded programs dispensing federal benefits through spousal relationships. The pattern of federal reliance on marital relationships began much earlier, however, during the Revolutionary War, when the Continental Congress awarded pensions to the widows and orphans of officers who died serving the new nation. These pensions and all military pensions and survivors benefits to follow intended to shore up the norm of the male head of household carrying out (even after death) his responsibility for his dependents. Federal benefits thus were premised on marital households being an economic unit basic to social welfare.22 Federal benefits channeled through spousal relationships became a persistent American norm, even as social change brought states to eliminate coverture and establish equalitarian and gender-neutral requirements in place of gender-based asymmetical marital roles.23 (See Sec. V infra.) Today, the federal government

Soon afterward, pensions were extended to servicemen. National Archives and Records Service, General Services Administration, REVOLUTIONARY WAR PENSION AND BOUNTYLAND-WARRANT APPLICATION FILES, National Archives Microfilm Publications, Pamphlet Describing M804 (Washington, D.C., 1974), available at http://www.footnote.com/pdf/M804.pdf. 23 Since the 1970s, the pensions have been gender neutral. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); ALICE KESSLER-HARRIS, supra n. 2 at 56-159
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uses spousal relationships as the route to veterans pensions, Social Security payments, and citizenship and naturalization advantages as well as other important benefits, where some other nations allot benefits to individuals regardless of marriage.24 This extensive channeling makes legal marriage all the more valuable to couples. Indeed, federal benefits added to state-level advantages provide strong incentives to marry rather than to cohabit. With DOMA in place, however, samesex couples married validly in their states are deprived not only of federal married status, but also of extensive financial advantages available to other married couples. Before DOMA existed, the federal government accepted states determinations of who was validly married no matter how far states criteria for validity diverged from one other. BLAG, in arguing that Congress acted rationally in deciding to define marriage for federal purposes as between a man and a woman (when potential for a state to license marriage between two parties of the same sex appeared on the horizon), ignores two centuries of federal practice of accommodating states diversity of criteria for entering marriage. (Sec. IV infra.)

(2001); COTT, supra n. 5, at 172-179; THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 103-151 (1992). 24 Cf. Turner v. Safley, 482 U.S. 78, 96 (1987) (voiding restriction on prison inmate marriages in part because marital status often is a precondition to the receipt of government benefits).
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C.

Supporting Children

Brief for Defendant-Appellant The Bipartisan Legal Advisor Group of the United States House of Representatives (BLAGs brief, at 48) also emphasizes a government interest in responsible procreation. As the foregoing historical review of states interest in the economic and social values of marriage indicates, however, states intentions in regulating marriage have been far less focused on procreation (which was assumed to take place with or without legal marriage) than on securing responsible adults support and protection for children born.25 The ability or willingness of couples to produce progeny has never been required or necessary to marry under the law of any American state. No state ever barred women past menopause from marrying, or allowed a husband to divorce his wife because she was past childbearing age. Men or women known to be sterile have not been prevented from marrying. Nor could a marriage be annulled for an inability to bear or beget children.26

Thus BLAGs brief (49, at n. 19), in quoting BLACKSTONEs COMMENTARIES on the duty of parents to provide for the maintenance of their children, and Montesquieu that the main end of marriage is the protection of infants, misses both authors explicit point that the governments interest in marriage, with regard to children, is the parents duty to support and protect (rather than to procreate). 26 3 GEORGE ELLIOTT HOWARD, A HISTORY OF MATRIMONIAL INSTITUTIONS CHIEFLY IN ENGLAND AND THE UNITED STATES at 3-160 (1904). While impotence, if unknown at the time of marriage, could be a ground for annulment, sterility was not. Thus state laws recognized a justifiable expectation of sexual intimacy, but not of progeny, in marriage. GROSSBERG, supra n. 2, at 108-110.
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Claims that the main purpose of marriage and the states main interest has always been to provide an optimal context for begetting and rearing biological children are normative and not historically-based.27 States in the past credited and encouraged marriages whether or not biological children would result from them, so long as the couple marrying met the states criteria for entering marriage. In the longer past, marriages in which stepfathers and/or stepmothers took responsibility for non-biological children were quite common, because of early and unpredictable deaths of biological parents, and widows and widowers remarriages. Families frequently housed orphaned relatives.28 States today continue to see marriage serving economic and social purposes not tied to biological relationships. In 2010 only 21% of American households are composed of a married couple and their minor children.29 In our post-industrial age, divorced or widowed adults often marry when they are past childbearing age, usually for reasons of intimacy and stability. As life spans have lengthened, more frequent divorce has replaced death as reason for blended families not based on biological relationships. Almost all couples voluntarily restrict the number of their COTT, supra n. 5, at 168-180, 206-210. Viz. the first First Family: George Washington fathered no children and was assumed to be sterile; Martha Custis brought two children from her first marriage into their household and they also later reared the children of her son, who died in the Revolutionary War. 29 Data from the 2010 Current Population Survey; see http://www.census.gov/newsroom/releases/archives/families_households/cb10174.html
28
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progeny without giving up sexual intimacy, which can be separated from reproductive consequences. With access now to reliable contraception, fertile couples with no interest in childbearing also marry. As they have throughout U.S. history, states today continue to offer the same rights and rewards, and place the same requirements, upon all couples validly married including same-sex couples where allowed whether or not they have children. DOMA, in contrast, singles out same-sex couples and robs them of their marital status at the federal level. IV. States Variation and Federal Acceptance Since its founding, the American federal republic has been committed to state jurisdiction over marriage definition. States have taken this responsibility seriously. All the states have required that marriage is a voluntary bond between a couple and a couple only, for every state prohibited bigamy30 who share sexual intimacy and mutual economic support for one another. The states' other requirements have often differed significantly, and have not been controverted at

Marital liberty of choice, as a model for the voluntary allegiance asked of citizens, was bound into American political theory during the American Revolution; likewise, following Montesquieus Spirit Of The Laws, American political culture reprobated polygamy, maintaining that marriage and government mirrored one another: monogamous marriage matched a government of consent, polygamy was always matched by despotism. This thinking underlay the fierce campaign against polygamy in the LDS Church. COTT, supra n. 5, at 21-23; see supra IIB.
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the federal level (unless shown to be unconstitutional). Previous to the passage of DOMA, states varying definitions were always accepted for federal law purposes. A. Multiplicity of State Variations and Inter-State Conflicts

States differed on the age a person might consent to marriage, what degree of consanguinity was allowed, whether a white and a person of color could marry, whether certain health minima were met, how spousal roles were defined and enforced, whether specific ceremonies were required for validation and whether and how marriage might be dissolved. Even more variations could be described.31 Individual states also changed their own marital regulations significantly over time. The federal government accepted all these differences and changes, never seeking uniformity across the states in any element of marriage until the Congress passed DOMA in 1996. Although states continuously altered eligibility requirements sometimes expanding and sometimes contracting the pool of couples who might be validly married Congress did not interpose its authority. In dispensing federal benefits (such as military pensions), federal agencies examined the validity of marriages closely and, in questionable cases, referred to the couples states requirements. BLAG argues (p. 43) that one basis for DOMA was costsavings, but strain on the federal purse was never cited as a reason to override a states determination of marriage validity. Far from stating a federal rule

31

GROSSBERG, supra n. 2, at 70-74, 86-113, 144-45.

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superseding that of any state, federal authorities frequently restated state jurisdiction in the marital arena.32 Divergence began on common-law marriage, for example, when the eminent jurist Chancellor James Kent argued in 1809 that a couples intent and consent created a valid marriage under common law, even without conformity to stateprescribed ceremonies. Such irregular marriages were very common in early America. State by state, jurists and legislators decided either to accept or reject Kents model and terminology of common law marriage. Most states but not all - adopted Kents view that while consent was always necessary for marriage, formal solemnization was not.33 Similarly, states varied on allowing marriage between first cousins. This was a common practice for centuries in Europe and was accepted in some of the states, being favored by certain elites. New England and much of the South accepted firstcousin marriage but it was prohibited in the Middle and Far West.34 Many differences such as who might perform marriage ceremonies caused little controversy. Some, however, created major conflicts. Even extremely E.g., In re Tidewater Marine Towing, Inc., 785 F. 2d 1317 (5th Cir. 1986); Slessinger v. Sec. of HHS, 835 F. 2d 937 (1st Cir. 1987). 33 Fenton v. Reed, 4 Johns. 52 (NY 1809); GROSSBERG, supra n. 2, at 64-83; HOWARD, supra n. 4, at 170-185 (frequency of informal marriage). In Meister v. Moore, 96 U.S. 76 (1877) and Maryland v. Baldwin, 112 U.S. 490 (1884), the U.S. Supreme Court validated common-law marriage unless a state specifically prohibited it, thus bowing to state jurisdiction. 34 GROSSBERG, supra n. 2, at 110-113.
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divisive differences did not prompt the federal government to adopt one rather than another states policy on a particular matter as its own rule. A prime example of strong inter-state discrepancy and conflict concerned marriages between whites and nonwhites. Laws nullifying and/or criminalizing these marriages originated in the colonial Chesapeake and spread eventually to most of the early states (but not all).35 After slavery was abolished, twenty states strengthened or added laws of this sort, and many specified new prohibitions on marriages of whites to Asians or Native Americans. Individual states added, eliminated, and changed their laws of this sort repeatedly over time. In the late 1930s (when thirty states still maintained such laws), laws in one state or another prohibited Negroes, Mulattoes, Quadroons, Octoroons, Blacks, Persons of African Descent, Ethiopians, Persons of Color, Indians, Mestizos, Half-Breeds, Mongolians, Chinese, Japanese, Malays, Kanakas, Coreans, Asiatic Indians, West Indians, and Hindus from validly marrying Whites.36 Despite this welter of changing classifications, Congress raised no objection. Federal agents dispensing benefits such as military pensions for Civil War widows simply examined potential recipients marriage validity by reference to relevant state laws. No furor arose about stress on the public fisc of more expansive
35

See DAVID H. FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE 217-220 & app. (1987). 36 PEGGY PASCOE, WHAT COMES NATURALLY: MISCEGENATION LAW AND THE MAKING OF RACE IN AMERICA at 119 (2009); see GROSSBERG, supra n. 2, at 138.
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definitions of marriage validity.37 Nor was it imagined that one states controversial policy could dictate that same policy to other states. When individual states put their own public policy regarding racial restriction above comity (as they regularly did), that was considered an inter-state conflict rather than a federal matter.38 Variability in divorce grounds also generated strong inter-state and grassroots conflicts.39 States began establishing legal procedures for divorce shortly after the Revolution. Marriages at that time were most frequently broken by one spouses desertion. Such breaches of marital economic responsibilities defied states aims to create social and economic order via marriage. In prescribing limited grounds for marital dissolution and overseeing post-divorce support

GROSSBERG, supra n. 2, at 133-40; see Ex Parte Kinney, 14 F. Cas. 602, 605-06 (C.C.E.D. Va. 1879) (no federal jurisdiction to grant habeas corpus relief to white citizen of Virginia where marriage of a white person to a negro was void and punishable by two to five years imprisonment imprisoned for living with the woman whom he wed legally in the District of Columbia.). Cf. SSR 67-56, 1967 WL 2993 (after Loving, 388 U.S. 1, agency could not respect states racially-based voiding of a marriage when determining marriage validity for wifes insurance benefits). 38 See STORY, COMMENTARIES, supra n. 10, 113-1Ba, at 174-75; cf. Justice Frankfurter (in dissent) learnedly discussing state conflicts, Sherrer v. Sherrer, 334 U.S. 343, 356-77 (1948), and see generally, ANDREW KOPPLEMAN, SAME SEX DIFFERENT STATES, 39-46 (Yale U. Press 2006). 39 HARTOG, supra n. 2, at 269-86.
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settlements, states underlined their interest in marriage as a means toward social stability.40 Over time, state legislatures expanded grounds for divorce. Some did so far more than others. The extent of variation by the mid-19th century horrified divorce opponents, who were aghast at liberalized grounds. Opponents were sure that venue-shopping among states would prevail, to the detriment of marriages everywhere. Indianas loose standards, for example, prompted complaints that Indianapolis in 1858 was overrun by a flock of ill-used, and ill-using, petulant, libidinous, extravagant, ill-fitting husbands and wives as a sink is overrun with the foul water of the whole house.41 Violent controversies over migratory divorce swirled for decades, without Congress stepping in to legislate a single standard.42 Greater panic followed publication of cumulative national divorce statistics in the 1890s. Pressure for tighter regulation of entry into marriage produced new restrictions, state by state, in response: longer waiting periods and higher required age, mandatory marriage licenses, eugenic-inspired disease tests, more specific or fewer grounds for divorce. Common-law marriage fell into disrepute: more and more states made prescribed ceremonies mandatory for marriage validity.43

BASCH, FRAMING, supra n. 2, at 19-42; COTT, supra n. 5, at 46-55. GLENDA RILEY, DIVORCE: AN AMERICAN TRADITION 65 (1991) (quoting INDIANAPOLIS DAILY JOURNAL); COTT, supra n. 5, at 50-52. 42 BASCH, FRAMING, supra n. 2, at 90-92, 100-102; COTT, supra n. 5, at 105-111. 43 GROSSBERG, supra n. 2, at 83-102, 140-52.
41
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Even in the midst of frequent state alterations in marriage entry requirements, Congress did not enter the realm of state jurisdiction to define a federal standard for any marital feature. In marital diversity the states functioned as laboratories of change, in the metaphor of Justice Louis Brandeis.44 So long as states observed constitutional bounds, the states experimented without federal interference. B. Federal deference to state determinations

Historical evidence shows that the federal agencies always dealt with interstate differences by assessing the relevant state laws and deciding which state law pertained to a given marriage. Overall, the federal government deferred to state law definitions. With regard to the divisive issue of cross-racial marriage, federal courts demurred, e.g. in 1879 in Ex Parte Kinney: Congress has made no law relating to marriage. It has no constitutional power to make laws affecting the domestic relations . If it were to make such a law for the states, that law would be unconstitutional .45 On the long-continuing, repeated issue of spouses eligibility for federal pensions, the rule was set in 1882 and continued: The question for us is, Does the law of the place of domicil concede that they are married? Each case must rest entirely upon the law of the place in which it

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 45 14 F. Cas. at 605-06.
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arises Because a marriage is lawful in one State it by no means follows that it is lawful in another State.46 Soon after the Social Security Act promised old-age pensions to surviving spouses, a legal scholar alighted on the need to examine common-law marriage claims carefully, clarifying that the [Social Security] board must make two findings, both dependent on state law, before certification [of valid marriage] can be made. 47 The U.S. Supreme Court in 1940, in noting the necessity for an examination of local law to determine the marital status in regard to federal tax obligations, saw no conflict between a uniform construction of national application in the federal income tax and Congress making it dependent on state law.48

DECISIONS OF THE DEPARTMENT OF THE INTERIOR IN APPEALED PENSION AND BOUNTY-LAND CLAIMS, John W. Bixler, ed., U.S. Dept. of the Interior, vol. XIX (1887-1930), Washington : G.P.O. , 331-32, viewed at http://www.llmcdigital.org.ezpprod1.hul.harvard.edu/docdisplay.aspx?textid=17388175 47 That is, the state in question had to validate common-law marriage, and the applicant had to meet its conditions. James P. Lynch, Social Security Encounters Common-Law Marriage in North Carolina, 16 N.C. L REV. 255, 257 (1937-38) (italics in original). Cf. Cunningham v. Appel, 12 Fed. Appx 361 (2001) (validity of common law marriage for Social Security benefit is governed by the laws of the state where the decedent had a permanent home when he died); Rev. Rul. 5866, 1958-1 C.B. Federal regulations now allow that when a marriages validity is imperfect under state law because of a legal impediment not known to an applicant for Social Security benefits acting in good faith, the federal agency may deem the marriage valid. Federal creation of this category and phrase deemed valid marriage acknowledged that federal authority cannot create a valid marriage. 20 C.F.R. 404.346. 48 Helvering v. Fuller, 310 U.S. 69, 74-75 (1967).
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In every operation of every federal policy touching married couples before DOMA, the relevant agency looked to state law. State marital diversity reigned, and conflicts were resolved within American federalism. States did not extend comity to marriage not comporting with their own public policy. Differences among states became structural features of American law and practice, always accepted if not fully welcomed. Prior to DOMA, where states disagreed, Congress did not pre-empt states policies in the name of federal uniformity or fiscal austerity. V. Change and Continuity into the Present Marriage has not remained static. Over centuries of our nations history, state legislatures and courts have continuously reviewed and refined marriage criteria, in order to keep marriage a vital institution aligned with changing standards. Significant shifts in social and sexual mores as well as in the economy have compelled states to revisit and adjust earlier marriage rules. From the 18th through the mid-20th century, state marriage laws enforced asymmetrical and unequal gender roles (through differing marital requirements for husbands and wives) and racial hierarchy (through race-based marriage proscriptions). Every state established its own varying details on these matters, without federal interposition. These features now, of course, so easily censurable began to be altered by various states. Evolving views of gender and race equality,
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moving some state legislatures and courts toward change, led eventually to reinterpretation of the 14th Amendments applicability by the Supreme Court.49 From todays perspective, this evolution toward symmetrical marital roles and cross-race freedom to marry may seem obvious or inevitable. Nonetheless, alterations in these directions were extremely divisive when they were initially introduced; opponents called them blasphemous and unnatural, and, more important, claimed they utterly defied and undid the essential meaning of marriage. Yet state legislators and courts used their power over marriage definition to enable change. State authorities responded to economic pressures and womens rights complaints by eliminating coverture (in stages), even though opponents strenuously objected that this marital unity doctrine, subsuming a wifes legal and economic individuality under her husbands power, had centrally defined marriage for many centuries.50 The demise of coverture was not complete until feminist suits in the 1970s brought state and federal court reinterpretation of sex discrimination.51 States rapid adoption of no-fault divorce (beginning with Californias move in

Viz. Loving, 388 U.S. 1 (1967); Weinberger, 420 U.S. 636; Califano v. Goldfarb, 430 U.S. 199 (1977); Orr v. Orr, 440 U.S. 268 (1979). 50 BASCH, IN THE EYES, supra n. 2; Richard H. Chused, Married Womens Property Law: 1800-1850, 71 GEO. L.J. 1359 (1983); Reva Siegel, The Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930, 82 GEO. L.J. 2127 (1994). 51 KESSLER-HARRIS, supra n. 2, at 117-129.
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1969) then converged to re-emphasize the centrality of individual liberty in marriage, as states gave spouses freedom to make their own judgments of marriage satisfaction or breakdown. Yet because states retained their economic interest in marriage, they did not let up on their control over the legalities of divorce and postdivorce settlements.52 In analogous fashion, bans on marriage across the color line, which had for centuries been loudly endorsed as natural, Gods plan, not discriminatory on any race, and required for U.S. national integrity, fell out of favor. Californias Supreme Court led the way in 1948 in overturning that states ban (established in 1851).53 Fifteen more states followed in the next two decades.54 In 1967, the U.S. Supreme Court newly interpreted such state proscriptions, calling them props for white supremacy and an unconstitutional denial of equal protection.55 In altering what were seen as essential criteria for marriage, states varied in pattern and pace. Substantial differences among them resulted at every step. Nonetheless, all along, subject only to constitutional limitations every states stipulations were respected for federal purposes until DOMA. The variations troubled some citizens, however. A movement formed in the 1880s to push for
52

COTT, supra n. 5, at 195-196, 205-210; STEPHEN D. SUGARMAN AND HERMA HILL KAY, ED., DIVORCE REFORM AT THE CROSSROADS (1990); MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987), 66-67. 53 Perez v. Sharp, 198 P.2d 17 (Cal. 1948). 54 GROSSBERG, supra n. 2, at 126-140; PASCOE, supra n. 33 at 205-284. 55 Loving, 388 U.S. 2.
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uniform national standards for marriage and divorce. Scores of proposals went through Congress aiming to amend the U.S. Constitution to permit federal creation of uniformity. Not one ever passed.56 The repeated failures showed strong majority support for retaining the existing constitutional allocation of powers.57 CONCLUSION Amici support the position of Appellees, because DOMA breaks with historical understanding of the state and federal roles with respect to marriage. For sound reasons fundamental to our federal system, marital status definition has been left to the states (operating within constitutional bounds). Despite the significant diversity resulting, history shows no precedent for Congressional pre-emption of marital definition for all federal purposes, on grounds of requisite uniformity or any other ground. The decision of the District Court striking down DOMA should be affirmed.

See Sherrer, 334 U.S. at 364 n.13 (Frankfurter, J., dissenting) (noting over seventy such amendments proposed and rejected since the 1880s); RILEY, supra n. 43, at 111, 117; Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L.Q., 611, 625-26 (2004). 57 Even the alternative approach of the uniform statute movement, which drafted model statutes for states to consider adopting voluntarily, has never made headway with marriage and divorce. See NELSON BLAKE, THE ROAD TO RENO: A HISTORY OF DIVORCE IN THE UNITED STATES 130-51 (1962); RILEY, supra n. 43, at 108-29.
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DATED: September 7, 2012

Respectfully submitted,

/s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389 Attorney for Amici Curiae Historians

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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULES OF APPELLATE PROCEDURES 29(d) AND 32(a) The type-volume limitation of Fed. R. App. P. 32(a)(7)(B) imposes a 14,000 word limitation on a partys principal brief. Pursuant to Fed. R. App. P. 29(d), an amicus brief may be no more than one-half the length authorized for a partys principal brief. This brief complies with Rules 29(d) and 32(a)(7)(B) because it contains 6999 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). September 7, 2012 Respectfully submitted, /s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system on September 7, 2012. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: September 7, 2012 /s/ Catherine R. Connors Catherine R. Connors Pierce Atwood LLP Merrills Wharf 254 Commercial Street Portland, ME 04101 [email protected] (207) 791-1389

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