4:14-cv-00015 #15

Case 4:14-cv-00015-RLY-TAB Document 15 Filed 03/31/14 Page 1 of 2 PageID #: 53
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION ELECTRONICALLY FILED MELISSA LOVE, et al ) ) ) ) ) ) ) ) ) ) ) ) ) ******* MOTION FOR IMMEDIATE PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF Pursuant to Fed. R. Civ. P. 65(a), Plaintiffs move this Court for a preliminary injunction compelling the State of Indiana to extend marital benefits to Plaintiffs who were wed in other states, and issue marriage licenses to unmarried Plaintiffs who apply. Plaintiffs rely on the attached Memorandum in support of their Motion.
CIVIL ACTION NO. 4:14-cv-15-RLY-TAB
PLAINTIFFS vs. MICHAEL RICHARD PENCE
DEFENDANT
Case 4:14-cv-00015-RLY-TAB Document 15 Filed 03/31/14 Page 2 of 2 PageID #: 54
Respectfully submitted, /s/Laura E. Landenwich____________________ DANIEL J. CANON LAURA E. LANDENWICH L.JOE DUNMAN CLAY DANIEL WALTON ADAMS, PLC Meidinger Tower, Suite 101 462 S. Fourth Street Louisville, KY 40202 (502) 561-2005 Dan@justiceky.com Laura@justiceky.com Counsel for Plaintiffs SHANNON FAUVER DAWN ELLIOTT FAUVER LAW OFFICE, PLLC 1752 Frankfort Ave. Louisville , KY 40206 (502) 569-7710 Shannon@fauverlaw.com Counsel for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on March 31, 2014, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to all having entered their appearance in this case. /s/ Laura E. Landenwich
Case 4:14-cv-00015-RLY-TAB Document 15-1 Filed 03/31/14 Page 1 of 34 PageID #: 55
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION ELECTRONICALLY FILED MELISSA LOVE, et al ) ) ) ) ) ) ) ) ) ) ) ) ) ******* MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF This Court is presented with the opportunity to restore constitutional rights to Indiana citizens who are the target of state-sanctioned discrimination. Moreover, this case presents the Court with an opportunity to join an increasing number of courts that have refused to end up on the wrong side of history. Plaintiffs are ordinary married couples. They go to work, attend school, raise their children, go to church, pay taxes, and in most respects live as any other married couple in Indiana. Like many married couples in the state, some Plaintiffs were actually wed in other jurisdictions. Their marriages were in all respects valid under the laws of the jurisdictions in which they were solemnized and registered. The federal government recognizes these marriages, and extends certain benefits to them as
CIVIL ACTION NO. 4:14-cv-15-RLY-TAB
PLAINTIFFS vs. MICHAEL RICHARD PENCE
DEFENDANT
a result.1 Other Plaintiffs wish to be married, and want to do so in their home state. But, the State of Indiana refuses to acknowledge the commitments made by these couples because their spouses are of the same sex. The law challenged in this case, IC 31-11-1-1 (Indiana Defense of Marriage Act) enables and enshrines Indiana's ongoing discrimination against Plaintiffs. Plaintiffs and their families are deprived of critical privileges, benefits, rights and responsibilities afforded to opposite-sex couples and are humiliated and degraded by Indianas ongoing refusal to recognize and acknowledge their unions. The decision in this case, and others like it, will affect the lives of Hoosiers for generations to come. And while the issues in this case may be mired in controversy, the discrete questions of law facing this Court are not difficult. Indiana's Defense of Marriage Act violates numerous provisions of the U.S. Constitution, and in numerous ways. These Plaintiffs, seek to have their commitments recognized and legitimized by Indiana. This Court can look to any one of the Constitutional protections discussed below to provide a basis for preliminary and permanent injunctive relief. FACTS Plaintiffs, Melissa Love, Erin Brock, Lane Stumler, and Michael Drury (the Love Plaintiffs), want to marry their partners in a civil ceremony in the state of Indiana among their family and friends. Melissa Love is a registered nurse and has known Erin Brock for fifteen years. (Affidavits of Melissa Love and Erin Brock, attached as Exhibits 1 and 2). They have been living together as a couple for two years and are engaged to be married. (Id.) Lane Stumler and Michael Drury also wish to be married. Jo Ann Dale, Carol Uebelhoer, Jennifer Redmond, and Jana Kohorst (the Dale Plaintiffs), are seeking recognition by the State of Indiana of their marriages, validly performed in other jurisdictions. Jo Ann Dale and Carol Ubelhoer have been living together in Indiana as a couple for thirty-five years.
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(Affidavits of Dale and Ubelhoer, Exhibits 3 and 4). They raised a daughter together, and are retired from professional careers. Dale and Ubelhoer were finally married in Boston, Massachusetts on December 26, 2008. Jana Kohorst and Jennifer Redmond have been in a committed relationship for sixteen years. (Affidavit of Jana Kohorst, Exhibit 5). They wed in Niagara Falls, NY on October 20, 2013. They live in Clark County, Indiana where they are currently raising a young son. (Id.). On May 13, 1997 the Indiana Governor signed into law IC 31-11-1-1, the Indiana Defense of Marriage Act. The statute provides: "(a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.2 Plaintiffs have suffered a variety of harms as a result of Indianas refusal to extend marital status to their relationships. They are subjected to higher income and estate taxes. They endure the additional expense of being excluded from family insurance coverage resulting in separate premiums and separate deductibles. They are unable to benefit from family leave policies at work. They do not have the burden and privilege of making medical or legal decisions for the other without the creation and expense of contractual relationships. Should they desire to divorce, they are unable to do so. (See Exhibits 1-5). The Plaintiffs with minor children have the additional burden of disproportionate parental rights to those children. All Plaintiffs fear that they may be excluded from important moments in the event of serious illness or death. In addition to these legal and financial harms, it is well recognized that the intangible benefits of marriage form a significant underpinning to the social fabric of our society. In their amicus brief to the United States Supreme Court in Hollingsworth v. Perry,3 the American Psychological Association,
2
This statute was challenged under the Indiana state constitution in 2005. The Indiana Court of Appeals found no violation, but did not review the statute under a federal constitutional framework. See Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005). 3 133 S. Ct. 2652 (2013). 3
American Medical Association, American Academy of Pediatrics, and several other healthcare organizations argued that marriage provides a positive sense of identity, self-worth, and mastery. (Amicus Brief, Exhibit 6, p. 14 (internal citation omitted)). They argued that scientific studies show that marriage results in greater physical and mental well being when compared to cohabiting couples. (Id. at 15-16). With respect to the children of same-sex couples, the American Academy of Pediatrics takes the position that If a child has 2 living and capable parents who choose to create a permanent bond by way of civil marriage, it is in the best interests of their child(ren) that legal and social institutions allow and support them to do so, irrespective of their sexual orientation. (Id. at p. 29, quoting Am. Acad. Of Pediatrics, Committee of Psychosocial Aspects of Child and Family Health, Policy Statement: Promoting the Well-Being of Children Whose Parents are Gay or Lesbian.). Finally, the medical associations assert that failing to recognize same-sex couples marriages results in a stigma that devalues and delegitimizes their familial relationships. (Id. p. 34-36). ARGUMENT The regulation of marriage occupies an area that has long been regarded as a virtually exclusive province of the States.4 However, state laws defining and regulating marriage, of course, must respect the constitutional rights of persons,5 which brings Indiana in conflict with the rights and freedoms guaranteed by the United States Constitution. The laws at issue in this case contravene a number of rights guaranteed to Plaintiffs by the federal Constitution. These include the rights to due process and equal protection articulated in the Fifth and Fourteenth Amendments, which protect individual life, liberty, and property from unjustified restriction by the federal and state governments and require equality for all citizens under the law. By rejecting the Plaintiffs marriages, the laws at issue here infringe the fundamental rights of marriage and travel. As such, these laws are subject to Sosna v. Iowa, 419 U.S. 393, 404 (1975). United States v. Windsor, 133 S. Ct. 2675, 2691 (2013), citing Loving v. Virginia, 388 U.S. 1, 87 (1967).
5 4
heightened judicial scrutiny, but fail under any standard of review. Furthermore, to the extent the statute reflects a religious preference by the General Assembly, it violates the Establishment Clause of the First Amendment. In addition, these laws violate the First Amendment's guarantee of freedom of intimate association, the full faith and credit guarantee in the U.S. Constitution, and the Supremacy Clause.
I. ! !
INDIANAS REFUSAL TO RECOGNIZE AND EXTEND MARITAL BENEFITS TO PLAINTIFFS VIOLATES THE DUE PROCESS AND EQUAL PROTECTION GUARANTEES OF THE FEDERAL CONSTITUTION! Though due process and equal protection are discrete legal concepts, courts often apply similar
analyses and standards of review for both. Equality of treatment and the due process right [to protect] the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.6 There is significant interplay between the Constitutions Amendments and the rights they protect. The law challenged by the Plaintiffs in this case implicates both Due Process and Equal Protection. The Fourteenth Amendment to the U.S. Constitution limits the power of state governments to regulate and interfere with the lives of individuals. No state shall...deprive any person of life, liberty, or property, without due process of law...7 The Constitutional promise of equal protection is violated when a law creates an indiscriminate imposition of inequalities.8 The guaranty of equal protection of the laws is a pledge of the protection of equal laws.9 While both federal and state governments are given some discretion to enact laws and regulations based upon classifications of citizens, this discretion is not without bounds. As a baseline, there must be a rational relationship between the
6
7
Lawrence v. Texas, 539 U.S. 558, 575 (2003). U.S. Const. amend. XIV 1. 8 Sweatt v. Painter, 339 U.S. 629, 635 (1950). 9 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (internal quotations omitted). 5
disparity of treatment and some legitimate governmental purpose.10 Where a classification implicates a fundamental right, such as marriage, or otherwise targets a suspect classification such as race, courts must apply a very strict form of judicial scrutiny. The Fifth Amendment to the U.S. Constitution limits the power of the federal government to regulate the lives of individuals. No person shall be ... deprived of life, liberty, or property, without due process of law...11 This Due Process Clause also appears in the Fourteenth Amendment, which provides due process for state actions: No state shall...deprive any person of life, liberty, or property, without due process of law...12 Because the law at issue here infringes Plaintiffs fundamental rights to marry and to travel they violate the due process protections of the Fifth and Fourteenth Amendments. And since Plaintiffs are gay and lesbian, the law also infringes equal protection (discussed below). The marriage ban can withstand constitutional scrutiny only if this Court finds it is narrowly tailored to serve a compelling state interest.
A. Marriage and Travel Are Fundamental Rights " " The right to marry is a liberty interest for which individuals are entitled to due process under both the Fifth and Fourteenth Amendments.13 Because [t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,14 the Supreme Court has declared, the decision to marry is a fundamental right.15
Heller v. Doe, 509 U.S. 312, 320 (1993). U.S. Const. amend. XIV. 12 U.S. Const. amend. XIV 1. 13 Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (U.S. 1974). 14 Loving v. Virginia, 388 U.S. 1, 12 (1967). 15 Turner v. Safley, 482 U.S. 78, 95 (1987).
11
10
As a fundamental right, marriage implicates numerous liberty interests, including the right to privacy,16 the right to intimate choice,17 and the right to free association.18 Marriage involves the most intimate and personal choices a person may make in a lifetime, choices central to dignity and autonomy...19 As such, the Constitution demands respect for the autonomy of the person in making these choices.20 And there is no constitutional basis to deny gays and lesbians the same autonomy in familial decisions that heterosexuals enjoy.21 All parties will likely agree that the right to marry is of fundamental importance to all individuals.22 Similarly, the United States Supreme Court has long recognized a fundamental constitutional right to travel.23 The right to unfettered interstate travel occupies a fundamental concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.24 As such, the judiciary has zealously guarded it for decades. The virtually unconditional personal right, guaranteed by the Constitution to us all,25 to be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement,26 has repeatedly been recognized as a basic constitutional freedom.27 This right is firmly embedded in our countrys jurisprudence, and is one that is essential to our federal system of government.28 A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when, as here, it uses any classification which serves to penalize the
16 17
Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Lawrence, 539 U.S. 574. 18 M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996). 19 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992). 20 Lawrence, 539 U.S. at 574. 21 Id. 22 Zablocki v.Redhail, 434 U.S. 374, at 384 (1978). 23 Shapiro v. Thompson, 394 U.S. 618 (1969). 24 United States v. Guest, 383 U.S. 745, 757 (1966). 25 Saenz v. Roe, 426 U.S. 489, 499 (1999)(emphasis added and quotation marks omitted). 26 Id. at 498 (internal quotation marks omitted). 27 Memorial Hospital v. Maricopa County, 415 U.S. 250, 254 (1974). 28 Saenz, 426 U.S. at 498, 50304. 7
exercise of that right.29 In cases where state legislation impedes the right to travel, the state must justify the law only with a compelling state interest. 30
B. The Appropriate Level of Scrutiny" " 1. Strict Scrutiny! " Because marriage is a fundamental right, laws that affect or interfere with an individuals right to marry are subject to very close judicial consideration. Equal protection analysis requires strict scrutiny of a legislative classification...when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.31 And [w]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.32 Personal decisions about marriage and family relationships must be made without unjustified government interference.33 Strict scrutiny also applies whenever a law discriminates on the basis of a suspect classification. Prejudice against discrete and insular minorities calls for a correspondingly more searching judicial inquiry.34 [T]he traditional indicia of suspectness include when a class is subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to
Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 903, 106 (1986)(internal quotation marks and citations omitted). 30 Maricopa County, 415 U.S. at 258; see also Shapiro, 394 U.S. at 634. 31 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (U.S. 1976), citing Rodriguez, 411 U.S. at 16. 32 Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977). 33 Carey v. Population Services International, 431 U.S. 678, 684-85 (1977). 34 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); see, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995) (strict scrutiny applied to a racial classification). 8
29
command extraordinary protection from the majoritarian political process.35 Additionally, discrete and insular minorities are marked by the immutable characteristics class members share.36 Undeniably, gay men and lesbians as a group have experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.37 Across the United States, particularly in recent years, laws have been enacted at both the state and federal level targeting gays and lesbians for unequal treatment. Some of those laws have subsequently been declared unconstitutional precisely for that reason.38 Plaintiffs are members of this minority group and are politically powerless to prevent discrimination by the majority through legislative means.39 They have had to rely largely on litigation and the judicial systems eventual recognition of their constitutional rights to defeat discriminatory legislation enacted by majorities of voters and state legislators. Since 2004, the Indiana General Assembly has made an annual and well-publicized effort to enshrine its discriminatory scheme in the Indiana Constitution in the form of an amendment banning same-sex marriage. In contrast, there have been no efforts aimed at repealing the existing ban. Additionally, the law at issue in this case classifies citizens on the basis of sexual orientation. Such classifications trigger heightened scrutiny because sexual orientation is one of a persons defining characteristics and is beyond a persons control. (See Exhibit 6, pp.7-10: Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change.). Among medical scholars, sexual orientation is now widely recognized as immutable. Quite recently, a District Court within the Sixth Circuit declared that gays and lesbians, exhibit obvious, immutable,
35 36
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). Lyng v. Castillo, 477 U.S. 635, 638 (1986); see, e.g., Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (sex, like race and national origin, is an immutable characteristic.). 37 Murgia, 427 U.S. at 313; and see Lawrence v. Texas, 539 U.S. 558, 571 (2003). 38 See, e.g., Romer, 517 U.S. 620; Lawrence, 539 U.S. 558; and Windsor, 133 S. Ct. 2675. 39 Bowen v. Gilliard, 483 U.S. 587, 602 (1987). 9
or distinguishing characteristics that define them as a discreet group because sexual orientation is an integral part of personal identity and cannot be changed through conscious decision or any other method.40 And even if some individuals sexual orientation were to change over time, the state cannot produce any evidence that it would be the result of a conscious choice. 41 The law challenged here must be subject to strict scrutiny both because it discriminates against a suspect group and because it infringes fundamental rights. Once strict scrutiny is chosen as the appropriate standard of review, the proponent of the law in question must prove that it is the least restrictive means of achieving some compelling state interest.42 Or, stated somewhat differently, a challenged law must demonstrate that it is narrowly tailored to further a compelling state interest.43 The types of compelling state interests recognized by the U.S. Supreme Court include the prohibition and regulation of drugs,44 remedying past and present racial discrimination,45 and protecting the interests of minor children.
46
To date, the State of Indiana has not identified a compelling interest
for its refusal to extend marital benefits to same-sex couples. Even if it could, a blanket refusal to exclude all same-sex couples from civil marriage is not going to be the least restrictive means for furthering that interest. Extending all the rights and benefits of marriage to all opposite-sex couples while denying them to all same-sex couples solely upon distinctions drawn according to sexual orientation is exceptionally broad, regardless of any claimed state interest for doing so. Bassett v. Snyder, 2013 U.S. Dist. LEXIS 93345 ( E.D. Mich. 2013), quoting Lyng, 477 U.S. at 638. It should be noted that courts have ruled that the conscious ability to change certain characteristics doesnt make them any less immutable. Zavaleta-Lopez v. AG of the United States, 360 Fed. Appx. 331, 333 (3d Cir. 2010) ([W]e focus on whether putative group members possess common, immutable characteristics such as race, gender, or a prior position, status, or condition, or characteristics that are capable of being changed but are of such fundamental importance that persons should not be required to change them, such as religious beliefs.) (Emphasis added)). 42 Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); see, e.g., Palmore v. Sidoti, 466 U.S. 429, 432 (1984). 43 See, e.g., Harper, 383 U.S. at 670; and Kramer, 395 U.S. at 632-33. 44 Employment Div. v. Smith, 494 U.S. 872, 905-906 (1990). 45 United States v. Paradise, 480 U.S. 149, 167 (1987). 46 Palmore, 466 U.S. at 433.
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Therefore, should this honorable Court apply the appropriate standard review of strict scrutiny, IC 31-11-1-1 must be ruled unconstitutional under the Fifth and Fourteenth Amendments of the United States Constitution. " 2. Rational Basis Even if this Court were to apply the more lenient, rational basis level of scrutiny, the laws at issue in this case still fail to pass constitutional muster. Where fundamental rights and suspect classes are not affected by challenged laws, courts apply the more permissive rational basis standard of review. Unlike strict scrutiny, rational basis review is deferential to legislative discretion. Even facially discriminatory classifications can be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.47 Such a classification does not run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.48 Further, courts are compelled under rational-basis review to accept a legislatures generalizations even when there is an imperfect fit between means and ends.49 As deferential as rational basis review may be, it is still Indianas burden to articulate a legitimate governmental purpose to justify the challenged legislation or regulations. While the means may be given wide latitude, the ends must still make sense. Several states in recent months have attempted to articulate a rational basis. Not one has been successful, and there is no reason to believe that Indiana has unique and pertinent justifications for its discrimination. Rather, Indiana will also expose that its discrimination against Plaintiffs is the result of animus, the pursuit of indoctrinating public life with religious doctrine, or general ill will. Below, the Plaintiffs will briefly address the most
47 48
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Heller v. Doe, 509 U.S. 312, 320 (1993). 49 Id. at 321. 11
common rational bases claimed by proponents of discriminatory marriage laws such as Indianas, as well as the malevolent basis those proponents often deny or attempt to hide. a. Tradition The preservation of tradition is one of the most common justifications for discriminating against same-sex couples. It is true that opposite-sex marriage has been the only legally recognized form of marriage in most U.S. states for a very long time. However, the ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.50 As a preliminary matter, traditional marriage, as a Biblical concept, was far different than the tidy one-man-one-woman model weve more recently embraced. Polygamy was rampant in biblical marriage,51 sexual slavery was a legitimate foundation for marriage,52 marriage to a foreigner was blasphemous,53 and rape victims were forced to marry their rapists.54 This is to say nothing of the fate of illegitimate children.55 While we all recognize the prominence of the Judeo-Christian tradition in American culture, rational people in a secular society do not rely on canonical arguments when enacting secular laws. Looking towards more recent forms of traditional marriage, in 1883, the U.S. Supreme Court rejected a challenge to Alabamas anti-miscegenation law, enshrining the Souths racist agenda on the intimate relationships of this countrys citizenry.56 Resisting change to the status quo, seventy years later the Virginia Supreme Court addressed the same issue, noting that more than half of the States of
50 51
Id. at 326. See Genesis 4:19 (Lamech has two wives); Genesis 26:34, 28:9 (Easau has three wives); Genesis 29:28, 30:4-9 (Jacob has four wives), Judges 8:30 (Gideon has many wives), and II Chronicles 13:21 (Abijah has fourteen wives). 52 Genesis 16:1-5 (Sarah gives Abraham her slave Hagar to bear his children). Numbers 31:17-18 (Moses instructs the Israelites to kill boy prisoners of war and keep the girls as a spoil of war), Exodus 21:4 (the wife and children of a slave belong to the master when the slave is freed). 53 Ezra 10:2-11. 54 Deuteronomy 22:28-29. 55 See Deuteronomy 23:2.
56
Pace v. Alabama, 106 U.S. 583. 12
the Union have miscegenation statutes. With only one exception they have been upheld in an unbroken line of decisions in every State in which it has been charged that they violate the Fourteenth Amendment. 57 In 1967 the Supreme Court revisited and dispatched the enduring tradition of racial purity in the now famous case, Loving v. Virginia.58 No one would openly argue that anti-miscegenation is a part of the traditional marriage states now claim the right to preserve, but it arguably has a longer historical tradition than many other marital forms, including monogamy. In Indiana, marriage has been of questionable benefit to the female participant. As summarized by Harriet Beecher Stowe:
[T]he position of a married woman ... is, in many respects, precisely similar to that of
the negro slave. She can make no contract and hold no property; whatever she inherits or earns becomes at that moment the property of her husband.... Though he acquired a fortune through her, or though she earn a fortune through her talents, he is the sole master of it, and she cannot draw a penny....[I]n the English common law a married woman is nothing at all. She passes out of legal existence.59 The concept of traditional marriage as used by opponents of same-sex marriage is a misnomer. If there is anything historically consistent about marriage, it is that it is an ever-changing institution that conforms to the realities and demands of the society that recognizes it. Even if the historical reality was as stable same-sex marriage opponents claim, neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries can insulate a discriminatory law from constitutional attack.60 Further, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a
Naim v. Naim, 87 S.E.2d 749. 753 (1955). 388 U.S. 1 (1967). 59 Homestead, Melissa J. (2005). American Women Authors and Literary Property, 1822-1869. NY: Cambridge University Press. p. 29.
58 60
57
Williams v. Illinois, 399 U.S. 235, 239 (1970). 13
law prohibiting the practice.61 Thus, tradition alone cannot form a rational basis for discriminatory government action. b. Procreation and Childrearing Serious proponents of discriminatory laws like Indianas invariably claim that legal marriage must exclude same-sex couples because the purpose of marriage is to promote responsible procreation and ensure children are raised in the most statistically supportive environment possible. This argument must fail because no marriage laws anywhere require procreation or any sort of proof of procreative ability. By the logic of discrimination proponents, marriage laws should similarly exclude anyone who is not able or is unwilling to bear children, not just same-sex couples. This argument was implicitly rejected when the U.S. Supreme Court separated marriage from the lone task of baby making nearly fifty years ago. In Griswold v. Connecticut, the Court explained: Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony of living, not political faiths; a bilateral loyalty, not commercial or social projects.62 Later, in Turner v. Safley, the Supreme Court identified many important attributes of marriage beyond procreation, including emotional support, public commitment, personal dedication, exercise of religious faith, and the receipt of government benefits.63 These important attributes found in opposite-sex marriages are just as applicable to same-sex marriages. Further undermining this argument, Griswold identifies the right of married couples to seek and acquire contraception i.e. the right to be married but not procreate. The Court cannot ignore the reality of the many childless opposite-sex marriages. Even if childrearing were an animating purpose of marriage laws, reproduction is not a requirement of any marriage law anywhere. The biology
61 62
Lawrence, 539 US at 577 (quoting Bowers, 478 US at 216 (Stevens, J., dissenting)). 381 U.S. 479, 486 (1965). 63 482 U.S. 78, 95-96 (1987). 14
argument asserts that the purpose of the states recognition of marriage is to counteract the harms of conceiving children outside of wedlock. Should the state then refuse to recognize the marriages of infertile couples? Couples who choose to adopt children? Elderly couples, or those that do not desire children? Should a marriage be voided in the event of a vasectomy? The obvious answer to these questions is that such laws are not rational. Marriage is not solely, or even predominantly, about procreation. Plaintiffs agree that the stability of the family unit is an important societal interest, but contend that the statute here actually works to undermine this societal value. Both the United States Supreme Court and the national associations of sociologists, psychologists, and medical experts explicitly reject the claim that children are harmed by same-sex relationships.64 Rather than ensuring children are raised in loving, stable homes, the legislation at issue here makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community.65 Indeed, voiding Plaintiffs marriages breaks up their legal familial relationships upon mere relocation. Recognizing that parental rights are fundamental, the Supreme Court requires a high standard in order to terminate them.66 For same-sex families moving to Indiana, parental rights are nullified without a modicum of due process. At this juncture, no prognostication is necessary. Sixteen states and the District of Columbia have fully legalized same-sex marriage. In Massachusetts, where same-sex marriage has been legal for over a decade, no dire social ramifications have been felt. New York, Iowa, Vermont, California,
64
See, e.g. Exhibit 6 and Exhibit 7, American Sociological Association amicus brief from Hollingsworth v. Perry, describing the view that married same-sex couples provide a nurturing environment for children as a consensus. (p. 22). 65 Windsor, 133 S. Ct. 2675, 2694. 66 Santosky v. Kramer, 455 U.S. 745, 753, 769 (1982). 15
Connecticut, New Hampshire, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota, New Jersey, Hawaii, Illinois, and New Mexico have demonstrated the hysteria of redefining marriage does not produce dire social consequences. Indianas exclusion of same-sex couples from marriage does not encourage better childrearing; it hinders it. As Justice Kennedy says, this discrimination humiliates tens of thousands of children now being raised by same-sex couples, because it makes it even more difficult for the children to understand the integrity and closeness of their own family.67 For these reasons, procreation and responsible childrearing cannot constitute rational bases for Indiana to prohibit same-sex marriages within its borders, and must fail under even the most deferential standard of review. c. State Sovereignty and Democratic Majorities Plaintiffs acknowledge that the regulation of domestic relations occupies an area that has long been regarded as a virtually exclusive province of the States.68 In the 19th Century case of Pennoyer v. Neff, the Supreme Court declared that states have absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created.69 Additionally, the Tenth Amendment to the U.S. Constitution, ratified in 1792, anticipates some powers reserved exclusively to states by declaring, the powers not delegated to the United States by the Constitution, nor prohibited it by the States, are reserved for the States respectively, or to the people. However, the Supreme Court has long acknowledged limits to state sovereignty. The Fourteenth Amendment explicitly extends the due process and equal protection rights of the Fifth Amendment to the states. Most recently, in Windsor, the Supreme Court reaffirmed that state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.70 Even though some
67 68
Windsor, 133 S.Ct. at 2694. Sosna v. Iowa, 419 U.S. 393, 404 (1975). 69 95 U.S. 714, 734-35 (1878), overruled by International Shoe v. Washington, 326 U.S. 310 (1945). 70 United States v. Windsor, 133 S. Ct. 2675, 2691 (2013), citing Loving v. Virginia, 388 U.S. 1, 87 16
language in Windsor recognizes the importance of state self-determination,71 the states do not in fact enjoy absolute sovereignty over issues of marriage and domestic relations. They cannot, for instance, limit marriage to couples of the same race.72 Though recent polls show growing opposition to a proposed Indiana constitutional amendment specifically prohibiting same-sex marriage, the Bellwether Research polling service has shown that a slight majority of Indiana citizens remain opposed to same-sex marriage.73 However, democratic popularity cannot insulate state laws from constitutional challenge. A law passed by even the greatest of margins at the ballot box can still be ruled unconstitutional. The Bill of Rights and subsequent amendments to the U.S. Constitution protect individual rights from popular federal and state government interference. As the Supreme Court has explained: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Ones right to life, liberty, and properly, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.74 Therefore, where even the most popular of state laws interferes with fundamental individual rights, the U.S Constitution prevails. The Plaintiffs fundamental right to marriage has been infringed by Indianas marriage law, and no margin of popular support for that law or a proposed state constitutional amendment can supersede the U.S. Constitution.
(1967). 71 Windsor, 133 S. Ct. at 2692. 72 See, Loving, 388 U.S. 1. (1967). 73 IN Ballot Bellweather Research for Howey Politics (April 2013), http://www.scribd.com/doc/150402929/IN-Ballot-Bellwether-Research-for-Howey-Politics-April2013. 74 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). 17
d. A Bare Desire to Harm More pertinent to the matter before this Court, [a]rbitrary and invidious discrimination cannot be a legitimate purpose for laws challenged under the U.S. Constitution.75 And the government may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.76 [T]he governmental objective must be a legitimate and neutral one.77 Classifications driven by animus against a minority are particularly prone to constitutional attack because bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.78 The Virginia anti-miscegenation statutes struck down in Loving v. Virginia rested solely upon distinctions drawn according to race, for which there was patently no legitimate overriding purpose independent of invidious racial discrimination which justifies the classification.79 In this case, the analogy should be obvious. The Court need only substitute race with sexual orientation to see that the Indiana statute at issue here rests solely upon irrational distinctions for which there is patently no legitimate overriding purpose independent of invidious discrimination. The Indiana Defense of Marriage Act was motivated by animus against homosexuals. But the Court need not analogize; the question of laws which classify and exclude homosexuals or otherwise single them out for unequal treatment has been addressed by the Supreme Court on several occasions. This Court should note that on every occasion this issue has been presented to the high Court since at least Romer v. Evans, no proponent has been able to articulate or prove a single legitimate purpose for which such laws are a reasonable means to achieve. Unable to survive even
75 76
Loving, 388 U.S. 1, 10 (1967). City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985); see, e.g., Turner v. Safley, 482 U.S. 78, 89-90 (1987). 77 Turner, 482 U.S. at 90. 78 United States Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (emphasis in original). 79 388 U.S. at 11. 18
rational basis review, the Court has consistently held such laws unconstitutional and declined to even consider whether strict scrutiny is appropriate. For example, in Romer, the Supreme Court concluded that Colorados constitutional amendment to exclude homosexuals from the protection of antidiscrimination laws failed, indeed defied, even the conventional inquiry of rational basis review.80 Having considered numerous possible justifications for Colorados law, the court dismissed all of them and concluded that it classified homosexuals not to further a proper legislative end but to make them unequal to everyone else.81 The Court in Romer went on, quoting Moreno: [A] bare desire to harm a politically unpopular group cannot constitute a legitimate government interest.82 In Lawrence v. Texas, the Court considered a state law that criminalized specific, private sexual behaviors common among consenting homosexual couples.83 None of the states proposed justifications for the law convinced the Court, which even proposed some possible legitimate purposes of its own (such as the protection of minors, the prevention of coercion or injury, the regulation of public conduct, or the prohibition of prostitution) but found none of these present in the language, purpose, or application of the Texas law.84 Applying rational basis review, the Court ruled that [t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual and was therefore unconstitutional.85 Even in his dissent, Justice Scalia acknowledged the obvious constitutional conflict presented by laws such as those at issue here:
80 81
517 U.S. at 631-32. Id. at 635. 82 Id. at 634. 83 539 U.S. 558 (2003). 84 Id. at 578. 85 Id. 19
If moral disapprobation of homosexual conduct is no legitimate state interest" for purposes of proscribing that conduct; and if ... [w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising [t]he liberty protected by the Constitution?86 More recently, in the case of United States v. Windsor, the Supreme Court considered the constitutionality of the federal DOMA 3, which defined marriage at the federal level as an institution exclusive to opposite-sex couples.87 The Court considered each possible justification for the law but disregarded them all, instead finding that DOMA 3 operated only to demean those persons who are in a lawful same-sex marriage.88 In so doing, it violate[d] basic due process and equal protection principles...89 Relying on language from cases that applied rational basis review such as Moreno and Romer (though not mentioning the standard explicitly), the Court found the law unconstitutional.90 Further, [w]hile the Fifth Amendment withdraws from the Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.91 In sum, the analysis in this case should be no different from that in Romer, Lawrence, or Windsor. Indiana cannot articulate any basis for its law other than: 1) the supposed antiquity of a practice, i.e., a traditional interpretation of marriage; 2) a vague interest in stable procreation and childrearing; 3) a reliance on state sovereignty irrespective of the federal constitution; 4) a bare desire to do harm to homosexuals, a politically unpopular group; or 5) an excuse which is excessively and inextricably entangled with a particular religion, as discussed below. None of these bases are
86 87
Id. at 604-05 (SCALIA, J. dissenting; citations omitted). 133 S. Ct. 2675 (U.S. 2013). 88 Id. at 2695. 89 Id. at 2693. 90 Id. at 2695. 91 Id. 20
permissible or rational within the meaning of Supreme Court jurisprudence. Therefore, Indianas discriminatory marriage law cannot withstand even the most deferential standard of review, and must be rule unconstitutional under the Fourteenth Amendment. II. IC 31-11-1-1 VIOLATES THE ESTABLISHMENT CLAUSE The First Amendment provides that Congress shall make no law respecting an establishment of religion . . .92 The First Amendments religion clauses both protect the individuals ability to exercise his or her own conscience, and also guard against the civic divisiveness that follows when the government weighs in on one side of religious debate[.]93" The touchstone for our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.94 "IC 31-11-1-1 violates these principles. There has been substantial scholarly debate over the analytical framework for assessing Establishment Clause cases since a conflicting pair of 2005 cases challenging Ten Commandments displays, ACLU v. McCreary County, Ky.95 and Van Orden v. Perry.96
97" Any
conflict in these two
cases, however, is not implicated in this particular challenge. The Court in McCreary Co. declined an invitation to abandon the Establishment Clause test outlined in Lemon v. Kurtsman.98 Although the Van Orden plurality declined to apply the Lemon test, it did not abandon the test. Instead, its holding was that passive government actions did not require the Lemon analysis.99
Like other amendments contained in the Bill of Rights, the First Amendment is made applicable to the states through the Fourteenth Amendment. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000). 93 McCreary Co. Ky. v. ACLU, 545 U.S. 844, 876 (2005). 94 Id. at 860 (quoting Epperson v. Arkansas, 393 U.S. 97 (1968)). 95 545 U.S. 844 (2005). 96 545 U.S. 677 (2005). 97 When weighting the precedential value of these two cases, it should be noted that Van Orden was a plurality decision, while McCreary Co. had a majority. 98 403 U.S. 602 (1971). 99 See Van Orden, 454 U.S. 844. 21
92
Under Lemon, the first requirement to pass constitutional muster under the Establishment Clause is that the government action must have a genuine secular purpose. Second, the primary effect of the legislation must neither advance nor inhibit religion. Third, the act must not foster an excessive government entanglement with religion.100 On at least five occasions, our highest Court has found an impermissible religious purpose is enough to invalidate challenged legislation under Lemon.101 Indeed, the Court in McCreary Co. thoroughly rejected the governments request to remove purpose from the Establishment Clause analysis, calling purpose a staple of statutory interpretation . . . [.]102 The Court in McCreary Co. acknowledged the permissibility of Sunday closing laws because of the minimal advancement of religion and the historical distance between the religious motive of Sunday closing laws and the practical, secular purpose of a day off.103 But, the Court went on to say, if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable.104 It may be that Christians view Christian marriages as furthering Gods divine plan. However, marriage is not simply a religious institution in this country. The state long ago determined that certain burdens and benefits granted and enforced by the state would accompany this traditionally religious relationship. Since the state has determined to grant married couples a secular social status, the institution itself cannot be said to be an inherently religious one. When the government acts with the purpose of favoring religious preferences, it sends a clear message that the religious adherents are a favored political class, and outsiders are not full
Lemon, 403 U.S. at 612-613. Stone v. Graham, 449 U.S. 39, 41, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam); Wallace v. Jaffree, 472 U.S. 38, 56-61, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985); Edwards v. Aguillard, 482 U.S. 578, 586-593, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987); Santa Fe, 530 U.S., at 308-309, 147 L. Ed. 2d 295, 120 S. Ct. 2266; McCreary Co. Ky v. ACLU, 545 U.S. 844 (2005). 102 545 U.S. at 861. 103 545 U.S. at 861. 104 Id.
101
100
22
members of the political community.105 To the extent that the statute is justified by the moral and religious beliefs of the majority, it must be invalidated.
III.
THE FIRST AMENDMENT'S GUARANTEE OF FREEDOM OF ASSOCIATION INVALIDATES IC 31-11-1-1 Roberts v. United States Jaycees,106 explicitly recognizes that the right to marry and to enter
into intimate relationships may be protected not only by the Fifth and Fourteenth amendments, but also by the First Amendment's guarantee of freedom of association. The right to intimate association primarily protects marital and other familial relationships, or, in the words of the Supreme Court, "those that attend the creation and sustenance of a familymarriage, childbirth, the raising and education of children, and cohabitation with one's relatives."107 Courts that have considered the First Amendment issue have concluded that the same level of scrutiny applied under a Due Process analysis should also apply to the First Amendment.108 Therefore, Plaintiff again urges the Court to apply the strict scrutiny standard advocated above, but in any event recognize that the laws fail even rational basis review.109 [A] regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.110
105
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)(OConnor, J., concurring)). 106 468 U.S. 609, 617-19 (1984). 107 Roberts, 468 U.S. at 619 (Internal citations omitted). 108 Cross v. Balt. City Police Dep't, 213 Md. App. 294, 308 (Md. Ct. Spec. App. 2013)(citing Windsor); Wolford v. Angelone, 38 F. Supp. 2d 452 (W.D. Va. 1999); Parks v. City of Warner Robins, 43 F.3d 609, 615 (11th Cir. 1995). 109 See, e.g., Via v. Taylor, 224 F. Supp. 2d 753 (D. Del. 2002) (applying both intermediate and rational basis scrutiny and concluding that the state's infringement upon a prison guard's right to marry a former inmate could withstand neither). 110 Id. at 764, citing Turner v. Safley, 482 U.S. 78 (U.S. 1987). See also Wolford, 38 F. Supp. 2d at 463 ("[W]here a policy does not order individuals not to marry, nor . . . directly and substantially interfere with the right to marry, the plaintiff has failed to show that the regulation infringes on either the right to 23
Of particular interest is the analysis set forth by the Michigan District Court in Briggs v. North Muskegon Police Dep't.111 Decades before Romer, Lawrence, and Windsor, the court identified bedrock constitutional principles that operate with no less force today. Briggs involved the privacy and association interests of non-married couples. The Court expressed suspicion of any attempt to regulate choices concerning family living arrangements.112" As Justice Powell stated in Moore, extending constitutional protection beyond the traditional family, "unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case." 431 U.S. at 501.113 The Court went on to apply strict scrutiny to the statute, and rejected the states justification: This Court rejects the notion that an infringement of an important constitutionally protected right is justified simply because of general community disapproval of the protected conduct. The very purpose of constitutional protection of individual liberties is to prevent such majoritarian coercion.114 On the basis of these longstanding, long-recognized constitutional principles, the Briggs court found that a public employee's right to freedom of association protected him from discipline based upon an intimate relationship, even though he was unmarried. Even if one does not take into account the concept of evolving standards of decency that mark the progress of a maturing society, which has been a central idea in the Supreme Court's jurisprudence,115 there is ample support in case law that is now thirty years old suggesting that even a non-traditional relationship cannot be impeded by the state without adequate justification. The obstinate refusal to recognize Plaintiffs' lawful marriages
marry or the First Amendment right of intimate association.") (Internal quotations omitted)). 111 563 F. Supp. 585 (W.D. Mich. 1983), affirmed by the Sixth Circuit, 746 F.2d 1475 (6th Cir. 1984), cert. denied 473 U.S. 909 (1985). 112 Id. at 588 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977)). 113 Id. at 589. 114 Id. at 590. 115 See, e.g., Trop v. Dulles, 356 U.S. 86, 101 (1958). 24
directly and substantially interferes with Plaintiffs' right to intimately associate with whomever they choose.116 The state can offer no justification for its intrusion.
IV.
IC 34-11-1-1 AND SEC. 2 OF DOMA VIOLATE THE FULL FAITH AND CREDIT CLAUSE The Full Faith and Credit Clause of the federal Constitution states: Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be provided, and the Effect thereof.117
Pursuant to this Clause, Congress enacted 28 U.S.C. 1738 which states, in pertinent part:" The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. Further, Article IV, 2 provides: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.118 The animating purpose of the full faith and credit command, was to make [the several states] integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.119 In effect, the Full Faith and Credit Clause imposes a constitutional rule of decision on state courts; that is, a rule by which courts ... are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a State other than that in which the court is Wolford, 38 F. Supp. 2d at 463 U.S. Const. art. IV, 1. 118 U.S. Const. art. IV, 1-2. 119 Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998); see also Estin v. Estin, 334 US 541, 546 (1948) (the Full Faith and Credit Clause substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns).
117 116
25
sitting.120 The rule of decision is that the forum state shall give full faith and credit to those acts, records, and proceedings of the sister state. Few U.S. Supreme Court decisions address the Full Faith and Credit Clause. It is therefore useful to reexamine the original intent and actual text of the constitutional provision. James Madison's early draft read: Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and Magistrates of every other State.121 And another version was proposed: Whensoever the act of any State, whether legislative [,] executive[,] or judiciary[,] shall be attested and exemplified under the seal thereof, such attestation and exemplification shall be deemed in other State[s] as full proof of the existence of that act -- and its operation shall be binding in every other State.122 Thus, the Full Faith and Credit Clause was originally intended to be quite expansive in its requirement that each state honor the laws and actions of other states. At the Philadelphia Convention, a draft was submitted based on Madison's version, which read: Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another.123 Governor Morris proposed amending this draft, to replace all the
Thompson v. Thompson, 484 U.S. 174, 182-183 (1988). The Records of the Federal Convention of 1787 Vol.4 Art.4 Sec.l Doc.4 (Max Farrand ed., Yale University Press 1937). 122 Id. 123 James Madison, Debates on the Adoption of the Federal Constitution 503-504 (J.B. Lippincott & Co. 1861) (1787), available at http://bit.ly/pH8R6J. (The creation of the links to the secondary sources cited herein, and much of the argument in this section, are to be credited to able counsel for the Petitioner in In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. Dallas 2010) (petition for review granted by the Texas Supreme Court, In re Marriage of J.B., 2013 Tex. LEXIS 608 (Tex., Aug. 23, 2013))).
121
120
26
wording after effect with thereof.124 There was concern that this might authorize Congress to modify the effect of legislative acts. Critically, support for Morris's amendment was offered only with the understanding that Congress's power was limited to prescribing the effect of judgments.125 The provision was further amended to change ought to to shall, in the first clause, making full faith and credit mandatory; and shall was replaced with may in the second clause-making Congress's ability to prescribe merely permissive.126 In other words, the Founders' intent was still to require each state to give full faith and credit to the operative effect of the laws particularly the legislation of other states, and to diminish Congress's ability to alter this obligation. Thus, by parsing the intent of the Founders and the plain language of the Constitution, a number of conclusions relevant to the instant case may be reached. First, a state legislature cannot pass a law with the express purpose of ignoring the laws and records of a sister state. By allowing the State of Indiana to reject Plaintiffs valid out-of-state marriages, IC 31-11-1-1 violates the Full Faith and Credit Clause. Moreover, insofar as these provisions deny access to Indiana courts for divorce or other proceeding premised upon a valid marriage, it violates the Privileges and Immunities Clause as well. Refusing access to the benefits enjoyed by other lawfully married couples, including divorce, creates conflict and confusion between the states and violates Full Faith and Credit by discriminating against the laws of other states under the guise of merely affecting the remedy.127 Additionally, it must be concluded that DOMA's limitation on a state's obligation to give full faith and credit to a marriage legally created in another state should be invalidated. Section 2 of DOMA (28 U.S.C. 1738C) purports to enable states to escape their obligations under Full Faith and Credit when it comes to same-sex marriage. But the plain text of the enforcement provision of the
124 125
Id. Id. 126 Id. see U.S. Const. art. IV, 1. 127 See Broderick v. Rosner, 294 U.S. 629, 642-643 (1935). 27
Constitution itself states that Congress may only prescribe (a) the manner in which the acts, records, and proceedings of other states shall be proved, which plainly refers to evidentiary matters, and (b) the effect thereof.128 DOMA appears to have nothing to say about (a) and instead focuses on (b), purporting to relieve the states of any obligation to give effect to an act, record, or proceeding that creates or recognizes a same-sex marriage.129 Thus, on its face, DOMA would allow states to give no effect whatsoever to the marriage laws and records of a sister state. Such action flies in the face of both the plain language and the original intent of the Full Faith and Credit Clause (to say nothing of the plain language of 28 U.S.C. 1738). Section 2 of DOMA, like the Indiana Statute considered herein, must be declared unconstitutional. V. THE SUPREMACY CLAUSE BARS INDIANA FROM INTERPRETING LAWS AFFECTING SAME-SEX MARRIAGE IN A MANNER CONTRARY TO THE DECISIONS OF THE U.S. SUPREME COURT The U.S. Constitution, art. VI, Cl 2 states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. As such, [t]he Constitution of the United States and all laws enacted pursuant to the powers conferred by it on the Congress are the supreme law of the land (U. S. Const., art. VI, sec. 2) to the same extent as though expressly written into every state law.130 State constitutions and amendments thereto are no less subject to the applicable prohibitions and limitations of the Federal Constitution.131 The proper interpretation of the U.S. Constitution is, of course, set forth by the United
128 129
U.S. Const. art. IV, 1. 28 U.S.C. 1738C. 130 People ex rel. Happell v. Sischo, 23 Cal. 2d 478, 491 (Cal. 1943) (citing Hauenstein v. Lynham, 100 U.S. 483, 490 (1880); Florida v. Mellon, 273 U.S. 12, 17 (1927).) 131 See, e.g., Harbert v County Court, 39 S.E.2d 177 (W.Va. 1946); Gray v Moss, 156 So. 262 (Fla. 28
States Supreme Court. The decisions of the nation's high court are thus conclusive and binding on state courts.132 With these basic principles in mind, the Supreme Court's opinion in Windsor sets forth the constitutional standard by which laws which hinder same-sex marriage should be evaluated. Justice Kennedy writes:" The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendments Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. . . . While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.133 There is much back and forth between the majority and the dissents in Windsor about whether the opinion is about federalism, due process, equal protection, or something else. For these purposes, it is important to note that Justice Kennedy clearly articulates two separate constitutional grounds for the majority opinion (i.e., the Fifth and Fourteenth amendments), and that these constitutional grounds are implicated by the government's infringement upon individual rights.
1934); Gray v Winthrop, 156 So. 270 (Fla. 1934). 132 See Thompson v. Atlantic C. L. R. Co., 38 SE2d 774 (Ga. 1946), aff'd 332 U.S. 168 (1947); Walker v. Gilman, 171 P2d 797 (Wash. 1946); Chicago, R. I. & P. R. Co. v S. L. Robinson & Co., 298 SW 873 (Ark. 1927); Weber Showcase & Fixture Co. v. Co-Ed Shop, 56 P.2d 667 (Ariz. 1936); Pennsylvania Rubber Co. v. Brown, 143 A. 703 (N.H. 1928); Lawyers' Coop. Publishing Co. v Bauer, 244 NW 327 (S.D. 1932). !== "Windsor, 133 S. Ct. at 2695 (2013) (internal citations omitted). 29
Finally, it is worth pointing out that the handful of lower-court opinions that have analyzed Windsor have interpreted its holding as one of basic individual rights under the Constitution.134 And finally, legal scholars agree with this view as well.135 For this reason, it matters little whether Windsor is characterized as a federalism case, an equal protection case, or a substantive due process case. The obvious point of the decision is that those individual rights are protected by the Federal Constitution, and therefore cannot be circumvented by any state statute or constitution. Quite simply, regardless of the proper amendment or analysis to be applied, Windsor stands for the proposition that the government must recognize a lawful same-sex marriage. It is beyond dispute that the Supreme Court is the final arbiter of the scope of such individual rights under the U.S. Constitution. Therefore, a state may not impose its own interpretation of the Constitution to exclude recognition of same-sex marriage without ignoring the holding in Windsor, and thereby violating the Supremacy Clause. "
Nonetheless, this is precisely what Indiana continues to do by enforcing its discriminatory law. The principal purpose and necessary effect of Indianas DOMA, no less than the federal DOMA, is to demean those persons who are in a lawful same-sex marriage. The Dale Plaintiffs in this case have entered into lawful same-sex marriages. Because of the Supremacy Clause, Indiana is not allowed to tell these plaintiffs that the scope of their rights as married persons is anything less than what the U.S. Constitution provides. For now, Windsor is the final word as to what the Constitution provides, and clearly prohibits Indiana's enforcement of IC 31-11-1-1. See, e.g., Jenkins v. Miller, 2013 U.S. Dist. LEXIS 152846, 6-78 (D. Vt. Oct. 24, 2013); Cross v. Balt. City Police Dep't, 213 Md. App. 294, 308-309 (Md. Ct. Spec. App. 2013); Obergefell v. Kasich, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio July 22, 2013) (Exhibit 1) (Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.). 135 See, e.g., Douglas NeJaime, Windsor's Right to Marry, 123 YALE L.J. ONLINE 219 (2013), http://yalelawjournal.org/2013/9/15/nejaime.html (Reading Windsor as a right-to-marry case has important implications for fundamental rights jurisprudence. The view of marriage that Justice Kennedy embraces suggests that the fundamental right to marry as presently understood safeguards a right that applies with equal force to same-sex couples.). 30
134
VI.
PLAINTIFFS ARE ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF Preliminary injunctive relief is appropriate where the moving party has (1) no adequate remedy
at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.136 If the moving party meets this threshold burden, the court then weighs the potential harms to the moving and nonmoving parties.137 In cases that involve constitutional freedoms, the likelihood of success on the merits is the weightiest of all factors.138 This practice acknowledges the well-established notion that the loss of a constitutional right, for even minimal periods of time, constitutes irreparable harm.139 As detailed in the Complaint and attached Affidavits, Plaintiffs have suffered, and will continue to suffer, irreparable harm by Indianas refusal to extend marital benefits to these couples. These harms include tax penalties, a lack of evidentiary privilege in their communications, exclusion from Indianas inheritance laws, exclusion from the courts for recovery in the event of a wrongful death, and the exclusion from family health insurance policies at considerable cost. At least one federal court concluded that discrimination against same-sex couples in the administration of state health insurance benefits was enough harm to justify a preliminary injunction.140 And, just two weeks ago, a federal district court in Tennessee granted preliminary injunctive relief to same-sex couples seeking recognition of their out-of-state marriages.141
136 137
Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). Id. 138 See Joelner v. Village of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004). 139 See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009); Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 578 (6th Cir. 2002). 140 See Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010). 141 Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (MD Tenn. 2014). 31
More importantly, these Plaintiffs are subject to exclusion from those important moments in life that give life depth and meaning. Plaintiffs are subject to exclusion by disapproving family members in the event of serious illness or death, which can strike at any time. (See attached Affidavits) These moments cannot be reclaimed once lost. Justice Kennedy eloquently described the harm suffered by these families in his recent opinion in United States v. Windsor: And it humiliates tens of thousands of children now being raised by same sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.142 Although Plaintiffs can point to real, ongoing harms, it is well-settled law in almost every jurisdiction, including the Seventh Circuit, that in the context of a motion for preliminary injunction, when a constitutional right is involved, no further showing of irreparable injury is necessary.143 Plaintiffs satisfy the first prong of the analysis. The United States Supreme Courts decision in United States v. Windsor,144 and the decisions of federal courts since Windsor, make success on the merits likely. Of the federal courts to review the constitutionality of same-sex marriage bans since Windsor, not one has upheld a ban. Indeed, the federal bench is currently unanimous in its view that same-sex marriage bans violate the Equal United States v. Windsor, 133 S. Ct. 2675, 2694 (2013). See, e.g., Natl People's Action v. Village of Wilmette, 914 F.2d 1008, 1013 (7th Cir. 1990); Miller v City of Cincinnati, 709 F. Supp. 2d 605 (S.D. Ohio 2008) (aff'd, remanded Miller v. City of Cincinnati, 2010 FED App. 0312P, 622 F.3d 524 (6th Cir. 2009)); Raker v Frederick County Pub. Schs., 470 F. Supp. 2d 634 (W.D. Va. 2007) (Loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury); Appel v Spiridon, 463 F. Supp. 2d 255 (D. Conn. 2006); Mich. Rehab. Clinic Inc. v City of Detroit, 310 F. Supp. 2d 867 (E.D. Mich. 2004); McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250 (D.C. N.M. 2003); Haynes v. Office of the Attorney Gen., 298 F. Supp. 2d 1154 (D. Kan. 2003). 144 Windsor, 133 S.Ct. at 2675.
143 142
32
Protection Clause of the Fourteenth Amendment.145 This case raises the same legal issues. Without even a single court ruling otherwise, there is no basis for this Court to find that Plaintiffs are anything other than likely to succeed on the merits. The above matters, as well as countless other rights, privileges, and responsibilities afforded to opposite-sex couples, constitute a violation of Plaintiffs' rights, and therefore ongoing harm. Defendants cannot claim an injury beyond bureaucratic inconvenience in continuing to advance its unconstitutional position. By contrast, the Love Plaintiffs have already suffered losses, and will suffer immediate and irreparable injury, loss, or damage if they are not allowed to exercise their fundamental right to marry. The Dale Plaintiffs have already suffered losses, and will suffer immediate and irreparable injury, loss, or damage if their marriages continue to go unrecognized by the state. For the foregoing reasons, Plaintiffs respectfully request an immediate preliminary injunction, and permanent injunctive relief, in an order directing Defendant to require the executive branch to issue marriage licenses and otherwise recognize valid same-sex marriages in the same way that opposite-sex marriages are recognized.
See, e.g., DeBoer v. Snyder, No. 12-CV-10285, 2014 U.S. Dist. LEXIS 37274 (ED Mich. Mar. 21m 2014); Tanco v. Haslam, No. 3:13-cv-01159, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn. Mar. 14, 2014); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky. Feb. 12, 2014); Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 U.S. Dist. LEXIS 4374 (N.D. Okla. Jan. 14, 2014); Kitchen v. Herbert, No. 2:13-CV-217, 2013 U.S. Dist. LEXIS 179331 (D. Utah Dec. 20, 2013); Obergefell v. Wymyslo, No. 1:13-CV-501, 2013 U.S. Dist. LEXIS 179550 (S.D. Ohio Dec. 23, 2013); Bostic v. Rainey, No. 2:13-cv-00395-AWA-LRL, 2014 U.S. Dist. LEXIS 19110 (E.D. Va. Feb. 13, 2014); De Leon v. Perry, No. 5:13-cv-00982-OLG, 2014 U.S. Dist. LEXIS 26236 (W.D. Tex. Feb. 26, 2014). 33
145
Respectfully submitted, s/Laura E. Landenwich___________________ DANIEL J. CANON LAURA E. LANDENWICH L. JOE DUNMAN CLAY DANIEL WALTON ADAMS, PLC Meidinger Tower, Suite 101 462 S. Fourth Street Louisville, KY 40202 (502) 561-2005 Dan@justiceky.com Laura@justiceky.com Counsel for Plaintiffs SHANNON FAUVER DAWN ELLIOTT FAUVER LAW OFFICE, PLLC 1752 Frankfort Ave. Louisville, KY 40206 (502) 569-7710 Shannon@fauverlaw.com Counsel for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on March 31, 2014, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to all having entered their appearance in this case.
/s/ Laura E. Landenwich
34
No. 12-144
In The
Supreme Court of the United States

DENNIS HOLLINGSWORTH, ET AL., Petitioners, v. KRISTIN M. PERRY, ET AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION, THE AMERICAN MEDICAL ASSOCIATION, THE AMERICAN ACADEMY OF PEDIATRICS, THE CALIFORNIA MEDICAL ASSOCIATION, THE AMERICAN PSYCHIATRIC ASSOCIATION, THE AMERICAN PSYCHOANALYTIC ASSOCIATION, THE AMERICAN ASSOCIATION FOR MARRIAGE AND FAMILY THERAPY, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS AND ITS CALIFORNIA CHAPTER, AND THE CALIFORNIA PSYCHOLOGICAL ASSOCIATION AS AMICI CURIAE ON THE MERITS IN SUPPORT OF AFFIRMANCE
NATHALIE F.P. GILFOYLE AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Street, N.E. Washington, DC 20002 PAUL M. SMITH
JENNER & BLOCK LLP 1099 New York Ave., N.W. Washington, DC 20001 (202) 639-6000 PSmith@jenner.com WILLIAM F. SHEEHAN ANDREW HUDSON GOODWIN | PROCTER LLP 901 New York Avenue, N.W. Washington, D.C. 20001
Counsel of Record
Counsel for Amici Curiae
i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................... iii INTEREST OF AMICI CURIAE ............................. 1 INTRODUCTION AND SUMMARY ....................... 4 ARGUMENT ............................................................ 5 I. II. The Scientific Evidence Presented in This Brief. .................................................. 5 Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change .......................... 7 Sexual Orientation and Relationships ............................................... 11 A. Gay Men and Lesbian Women Form Stable, Committed Relationships That Are Equivalent to Heterosexual Relationships in Essential Respects. ....................... 11 The Institution of Marriage Offers Social, Psychological, and Health Benefits That Are Denied to Same-Sex Couples. ............................................. 14 Many Same-Sex Couples Are Raising Children. ....................... 18 The Factors That Affect the Adjustment of Children Are Not Dependent on Parental
III.
B.
IV.
The Children of Same-Sex Couples ............ 18 A. B.
ii Gender or Sexual Orientation ........................................ 18 C. There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted. ............. 22
V.
Challenges to the Evidence on Same-Sex Parents by Other Amici Are Unfounded............................................. 31 A. The Methodological Criticisms Fail to Recognize the Cumulative Nature of Scientific Research ............................ 31 The Regnerus Study Does Not Provide Evidence That Parental Sexual Orientation Affects Child Development Outcomes ........................................... 33
B.
VI.
Denying the Status of Marriage to Same-Sex Couples Stigmatizes Them. ........................................................... 34
CONCLUSION ....................................................... 37
iii TABLE OF AUTHORITIES CASES: PAGE(S)
Baker v. Wade, 106 F.R.D. 526
(N.D. Tex. 1985) ............................................28 (1984) .............................................................36 671 F.3d 1052 (9th Cir. 2012) .......................4, 36
Heckler v. Mathews, 465 U.S. 728 Perry v. Brown,
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Conceptualization of Marital Commitment: An Integrative Analysis, 72 J. Personality & Soc.
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Am. Acad. of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Policy Statement:
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iv Am Assn for Marriage & Fam. Therapy, AAMFT Position on Couples and Families (2005), available at http://www. aamft.org/imis15/Content/About_A AMFT/Position_On_Couples.aspx ................3 Am. Assn for Marriage & Fam. Therapy, Reparative/Conversion Therapy (2009), available at http://www.aamft.org/iMIS15/AAM FT/MFT_Resources/Content/Resou rces/Position_On_Couples.aspx ....................10 Am. Med. Assn, Policy H-60.940, Partner Co-Adoption, available at http://www.amaassn.org/ama/pub/about-ama/ourpeople/member-groupssections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.page ................................30-31 Am. Med. Assn, Policy H-65.973,
Health Care Disparities in SameSex Partner Households, available at http://www.ama-
assn.org/ama/pub/about-ama/ourpeople/member-groupssections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.page ................................35
v Am. Med. Assn, Policy H-160.991,
Health Care Needs of the Homosexual Population, available at http://www.ama-
assn.org/ama/pub/about-ama/ourpeople/member-groupssections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.page ................................10
Am. Psychiatric Assn, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974) ...................................8 Am. Psychiatric Assn, Position Statement: Psychiatric Treatment and Sexual Orientation (1998),
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vi Am. Psychoanalytic Assn, Position Statement: Attempts to Change
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Am. Psychoanalytic Assn, Position Statement: Parenting (2012),
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vii Am. Psychol. Assn, Resolution on
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C.J. Telingator & C.J. Patterson,
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Am. Acad. Child & Adolescent Psychiatry 1364 (2008) .................................22
The Family Context of Parenting in Childrens Adaptation to Elementary School (P.A. Cowan et al. eds., 2005).................................................21 J.L. Wainright et al., Psychosocial
Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex Parents, 75 Child Dev. 1886 (2009)........ 22, 25, 32
xxiv J.L. Wainright & C.J. Patterson,
Delinquency, Victimization, and Substance Use Among Adolescents With Female Same-Sex Parents,
20 J. Fam. Psychol. 526 (2006) ............... 24, 31, 32
J.L. Wainright & C.J. Patterson, Peer
Relations Among Adolescents With Female Same-Sex Parents, 44
Developmental Psychol. 117 (2008) ....... 25, 31, 32
L.K. White & A. Booth, Divorce Over
the Life Course: The Role of Marital Happiness, 12 J. Fam.
Issues 5 (1991)...............................................17
K. Williams, Has the Future of
Marriage Arrived? A Contemporary Examination of Gender, Marriage, and Psychological Well-Being, 44 J.
Health & Soc. Behav. 470 (2003)..................16
1 INTEREST OF AMICI CURIAE1 The American Psychological Association, the worlds largest professional association of psychologists, is a scientific and educational organization dedicated to increasing and disseminating psychological knowledge. The Association has adopted multiple research-based policy statements supporting the rights of gay and lesbian people, including a 2011 policy statement supporting full marriage equality and recognizing that according gay and lesbian people only a civil union status perpetuates the stigma historically attached to homosexuality, and reinforces prejudice against lesbian, gay, and bisexual people. Am. Psychol. Assn, Resolution on Marriage Equality For Same-Sex Couples (2011), available at http://www. apa.org/about/policy/same-sex.pdf. The American Medical Association (AMA) is the largest professional association of physicians, residents, and medical students in the United States, substantially all of whom are represented in the AMAs policy making process. The objectives of the AMA are to promote the science and art of medicine and the betterment of public health. Its policies regarding gay and lesbian issues promote those objectives. The American Academy of Pediatrics (AAP) is the largest professional association of pediatricians in
1
No partys counsel authored this brief in whole or in part, and no party or a partys counsel nor any other person other than the Amici contributed money that was intended to fund preparing or submitting the brief.
2 the world, with over 62,000 members. Through education, research, advocacy, and the provision of expert advice, AAP seeks the optimal physical, mental, and social health and well-being for infants, children, adolescents, and young adults. The AAP supports marriage equality for all capable and consenting couples, including those who are of the same gender. The American Psychiatric Association is the Nations largest organization of physicians specializing in psychiatry. It joins this brief for the reasons expressed in its 2005 position statement, Departments/EDU/Library/APAOfficialDocumentsan dRelated/PositionStatements/200502.aspx (In the interest of maintaining and promoting mental health, the American Psychiatric Association supports the legal recognition of same-sex marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities.). The American Psychoanalytic Association is the oldest and largest national psychoanalytic membership organization, with more than 3,500 members and associates. It believes that marriage is a basic human right and that same gender couples should be able to share equally in the rights and responsibilities of civil marriage. The California Medical Association (CMA) is a nonprofit association of approximately 37,000 California physicians working to promote the science and art of medicine, the care and well-being of patients, the protection of public health, and the betterment of the
Support of Legal Recognition of Same-Sex Civil Marriage, available at http://www.psych.org/
3 medical profession. The CMA recognizes that denying civil marriage contributes to poorer health outcomes for gay and lesbian individuals, couples and their families. The American Association for Marriage and Family Therapy (AAMFT), founded in 1942, is a national professional association representing the field of marriage and family therapy and the professional interests of over 50,000 marriage and family therapists in the United States. AAMFT joins this brief for the reasons expressed in its 2005 Position on Couples and Families. Am Assn for Marriage & Fam. Therapy, AAMFT Position on Couples and Families (2005), available at http://www. aamft.org/imis15/Content/About_AAMFT/Position_O n_Couples.aspx. The National Association of Social Workers (NASW) is the largest association of professional social workers in the world, with nearly 140,000 members. NASW develops policy statements on issues of importance to the social work profession and, consistent with those statements, NASW and the NASW California Chapter (also an Amicus herein) support full social and legal acceptance of lesbian, gay, and bisexual people. With more than 2500 members, the California Psychological Association seeks to advance the science and practice of psychology as a means of promoting human welfare by supporting excellence in education, training, research, advocacy, and service. All parties have consented to the filing of this brief.
4 INTRODUCTION AND SUMMARY As the Ninth Circuit noted, Proposition 8 had one effect, to strip[] same-sex couples of the right to obtain and use the designation of marriage. Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012). By so doing, the initiative withholds from gay men and lesbian women an important symbol of state legitimization and societal recognition. Id. Some proponents of the initiative claim that this exclusion merely reflects meaningful differences between same-sex and heterosexual relationships, or between the parenting abilities of same-sex and heterosexual couples. The scientific research does not justify those claims. Rather, scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that most gay, lesbian, and bisexual adults do not experience their sexual orientation as a choice; that gay and lesbian people form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; and that same-sex couples are no less fit than heterosexual parents to raise children and their children are no less psychologically healthy and welladjusted than children of heterosexual parents. In short, the claim that official recognition of marriage for same-sex couples undermines the institution of marriage and harms their children is inconsistent with the scientific evidence. The body of research presented below demonstrates that the discrimination effected by Proposition 8 unfairly stigmatizes same-sex couples. The research also contravenes the stereotype-based rationales that some advance to support Proposition 8 and that the
5 Equal Protection Clause of the Amendment was designed to prohibit. ARGUMENT I. The Scientific Evidence Presented in This Brief. Representing the leading associations of psychological, psychiatric, medical, and social work professionals, Amici have sought in this brief to present an accurate and responsible summary of the current state of scientific and professional knowledge concerning sexual orientation and families relevant to this case. In drawing conclusions, Amici rely on the best empirical research available, focusing on general patterns rather than any single study. Before citing a study herein, Amici have critically evaluated its methodology, including the reliability and validity of the measures and tests it employed, and the quality of its data-collection procedures and statistical analyses. Scientific research is a cumulative process and no empirical study is perfect in its design and execution. Even well-executed studies may be limited in their implications and the generalizability of their findings.2 Accordingly, Amici base their conclusions
2
Fourteenth
For example, to confidently describe the prevalence or frequency with which a phenomenon occurs in the population at large, it is necessary to collect data from a probability or representative sample. A probability sample consists of individuals selected from the study population through a process that gives each member of the population a calculable chance of being included. Nonprobability samples do not give all members of the study population a chance of being
6 as much as possible on general patterns rather than any single study. All scientific studies can be constructively criticized, and scientists continually try to identify ways to improve and refine their own work and that of their colleagues. Thus, many studies cited herein discuss their limitations and provide suggestions for further research. This is consistent with the scientific method and does not impeach the overall conclusions. Most of the studies and literature reviews cited herein have been peer-reviewed and published in reputable academic journals. In addition, other academic books, book chapters, and technical reports, which typically are not subject to the same peer-review standards as journal articles, are included when they report research employing rigorous methods, are authored by well-established
includedsuch as, for example, a study of voters that relies on volunteers who phone in to a telephone number advertised in a newspaper. Case studies and nonprobability samples can be used to document the existence of a phenomenon in the study population. For studies of groups that constitute a relatively small proportion of the population, obtaining a probability sample can be extremely expensive or otherwise not feasible. Consequently, researchers studying such groups may rely on nonprobability samples. If they wish to compare members of the smaller group with members of the majority group (e.g., lesbian mothers with heterosexual mothers), they may recruit nonprobability samples of both groups that are matched on relevant characteristics (e.g., educational level, age, income). Regardless of the sampling method used, greater confidence can be placed in findings that have been replicated by others using different samples.
7 researchers, and accurately reflect professional consensus about the current state of knowledge. Amici have made a good faith effort to include all relevant studies and have not excluded any study because of its findings. II. Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change. Sexual orientation refers to an enduring disposition to experience sexual, affectional, and/or romantic attractions to one or both sexes. It also encompasses an individuals sense of personal and social identity based on those attractions, on behaviors expressing those attractions, and on membership in a community of others who share those attractions and behaviors.3 Although sexual orientation ranges along a continuum from exclusively heterosexual to exclusively homosexual, it is usually discussed in three categories: heterosexual (having sexual and romantic attraction primarily or exclusively to members of the other sex), homosexual (having sexual and romantic attraction primarily or exclusively to members of ones own sex), and bisexual (having a significant degree of sexual and romantic attraction to both sexes).
See A.R. DAugelli, Sexual Orientation, in 7 Am. Psychol. Assn, Encyclopedia of Psychology 260 (A.E. Kazdin ed., 2000); G.M. Herek, Homosexuality, in 2 The Corsini Encyclopedia of Psychology 774-76 (I.B. Weiner & W.E. Craighead eds., 4th ed. 2010); Institute of Medicine, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011).
8 Although homosexuality was classified as a mental disorder when the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, only five years later a study sponsored by the National Institute of Mental Health found no evidence to support the classification.4 On the basis of that study and others demonstrating that the original classification reflected social stigma rather than science,5 the American Psychiatric Association declassified homosexuality as a mental disorder in 1973. In 1974, the American Psychological Association adopted a policy reflecting the same conclusion. For decades, then, the consensus of mental health professionals and researchers has been that homosexuality and bisexuality are normal expressions of human sexuality and pose no inherent obstacle to leading a happy, healthy, and productive life, and that gay and lesbian people function well in the full array of social institutions and interpersonal relationships.6
4
E. Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techs. 18 (1957).
5 B.F. Riess, Psychological Tests in Homosexuality, in Homosexual Behavior: A Modern Reappraisal 296 (J. Marmor ed., 1980); J.C. Gonsiorek, The Empirical Basis for the Demise of the Illness Model of Homosexuality, in Homosexuality: Research Implications for Public Policy 115 (J.C. Gonsiorek & J.D. Weinrich eds., 1991).
Psychologist 620, 633 (1975).
See, e.g., Am. Psychiatric Assn, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974); Am. Psychol. Assn, Minutes of the Annual Meeting of the Council of Representatives, 30 Am.
9 Most gay men and lesbians do not experience their sexual orientation as resulting from a voluntary choice. In a U.S. national probability sample of 662 self-identified lesbian, gay, and bisexual adults, 88% of gay men and 68% of lesbians reported feeling they had no choice at all about their sexual orientation, while another 7% of gay men and 15% of lesbians reported only a small amount of choice. Only 5% of gay men and 16% of lesbians felt they had a fair amount or a great deal of choice.7 Several amici supporting Proposition 8 challenge the conclusion that for most people sexual orientation is not a matter of choice, but they offer no credible scientific support for their position.8 Moreover, although some groups and individuals have offered clinical interventions that purport to change sexual orientation from homosexual to heterosexualsometimes called conversion therapies these interventions have not been shown to be effective or safe. A review of the scientific literature by an American Psychological Association task force concluded that sexual orientation change
G. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Poly 176 (2010). See also G. Herek et al., Internalized Stigma Among Sexual Minority Adults: Insights From a Social Psychological Perspective, 56 J. Counseling Psychol. 32 (2009).
8
See Amicus Br. of Liberty Counsel, at 35; Amicus Br. of Parents and Friends of Ex-Gays and Gays, passim; Amicus Br. of Family Research Council, at 27-28; Amicus Br. of Dr. Paul McHugh, at 14-28.
10 efforts are unlikely to succeed and indeed can be harmful.9 All major national mental health organizations including Amicihave adopted policy statements cautioning the profession and the public about treatments that purport to change sexual orientation.10
Am. Psychol. Assn, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009); see also Am. Psychol. Assn, Resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts (2009), both available at http://www.apa.org/pi/lgbt/resources/sexual-orientation.aspx.
See Am. Psychol. Assn, Resolution, supra note 9; Am. Psychiatric Assn, Position Statement: Psychiatric Treatment and Sexual Orientation (1998), available at http://www. psych.org/Departments/EDU/Library/APAOfficialDocuments andRelated/PositionStatements/199820.aspx; Am. Assn for Marriage & Fam. Therapy, Reparative/Conversion Therapy (2009), available at http://www.aamft.org/iMIS15/AAMFT/ MFT_Resources/Content/Resources/Position_On_Couples.aspx; Am. Med. Assn, Policy H-160.991, Health Care Needs of the Homosexual Population, available at http://www.amaassn.org/ama/pub/about-ama/our-people/member-groupssections/glbt-advisory-committee/ama-policy-regarding-sexualorientation.page; Natl Assn of Soc. Workers, Position Statement: Reparative and Conversion Therapies for Lesbians and Gay Men (2000), available at http://www.naswdc. org/diversity/lgb/reparative.asp; Am. Psychoanalytic Assn, Position Statement: Attempts to Change Sexual Orientation, Gender Identity, or Gender Expression (2012), available at http://www.apsa.org/about_apsaa/position_statements/attempts _to_change_sexual_orientation.aspx; B.L. Frankowski, Sexual Orientation and Adolescents, 113 Pediatrics 1827 (2004).
10
11 III. Sexual Orientation and Relationships. Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex or age. This perspective is incomplete because sexual orientation necessarily involves relationships with other people. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is only by acting with another personor desiring to actthat individuals express their heterosexuality, homosexuality, or bisexuality. Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. Ones sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity.
A. Gay Men and Lesbian Women Form Stable, Committed Relationships That Are Equivalent to Heterosexual Relationships in Essential Respects.
Like heterosexuals, most gay and lesbian people want to form stable, long-lasting relationships,11 and
In a 2005 U.S. national probability sample of 662 selfidentified lesbian, gay, and bisexual adults, of those who were currently in a relationship, 78% of the gay men and 87% of the lesbian women said they would marry their partner if it was legal, and, of those not currently in a relationship, 34% of gay men and 46% of lesbian women said that they would like to marry someday. Herek et al., Demographic, supra note 7. See
11
12 many of them do: numerous studies using nonprobability samples of gay and lesbian people have found that the vast majority of participants have been in a committed relationship at some point in their lives, that large proportions are currently in such a relationship (40-70% of gay men and 45-80% of lesbian women), and that many of those couples have been together 10 or more years.12 Survey data from probability samples support these findings.13 Data from the 2010 US Census show that same-sex
also Henry J. Kaiser Fam. Found., Inside-OUT: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Publics Views on Issues and Policies Related to Sexual Orientation 31 (2001), available at http://www.kff.org
/kaiserpolls/upload/New-Surveys-on-Experiences-of-LesbiansGays-and-Bisexuals-and-the-Public-s-Views-Related-to-SexualOrientation-Report.pdf; A.R. DAugelli et al., Lesbian and Gay Youths Aspirations for Marriage and Raising Children, 1 J. LGBT Issues Counseling 77 (2007).
12
Orientation 165 (C.J. Patterson & A.R. DAugelli eds., 2013); L.A. Peplau & A.W. Fingerhut, The Close Relationships of Lesbians and Gay Men, 58 Ann. Rev. Psychol. 405 (2007); L.A. Peplau & N. Ghavami, Gay, Lesbian, and Bisexual Relationships, in Enclyclopedia of Human Relationships (H.T. Reis & S. Sprecher eds., 2009). Herek et al., Demographic, supra note 7; T.C. Mills et al., Health-Related Characteristics of Men Who Have Sex with Men: A Comparison of Those Living in Gay Ghettos with Those Living Elsewhere, 91 Am. J. Pub. Health 980, 982 (Table 1) (2001); S.D. Cochran et al., Prevalence of Mental Disorders, Psychological Distress, and Mental Services Use Among Lesbian, Gay, and Bisexual Adults in the United States, 71 J. Consulting & Clinical Psychol. 53, 56 (2003); Henry J. Kaiser Fam. Found., supra note 11.
13
See A.W. Fingerhut & L.A. Peplau, Same-Sex Romantic Relationships, in Handbook of Psychology and Sexual
13 couples headed more than 600,000 US households and more than 90,000 in California.14 Empirical research demonstrates that the psychological and social aspects of committed relationships between same-sex partners largely resemble those of heterosexual partnerships. Like heterosexual couples, same-sex couples form deep emotional attachments and commitments. Heterosexual and same-sex couples alike face similar issues concerning intimacy, love, equity, loyalty, and stability, and they go through similar processes to address those issues.15 Empirical research also shows that gay and lesbian couples have levels of relationship satisfaction similar to or higher than those of heterosexual couples.16
Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, available at http://www. census.gov/hhes/samesex/files/supp-table-AFF.xls. L.A. Kurdek, Change in Relationship Quality for Partners from Lesbian, Gay Male, and Heterosexual Couples, 22 J. Fam. Psychol. 701 (2008); L.A. Kurdek, Are Gay and Lesbian Cohabiting Couples Really Different from Heterosexual Married Couples?, 66 J. Marriage & Fam. 880 (2004); G.I. Roisman et al., Adult Romantic Relationships as Contexts for Human Development: A Multimethod Comparison of Same-Sex Couples with Opposite-Sex Dating, Engaged, and Married Dyads, 44 Developmental Psychol. 91 (2008); see generally L.A. Kurdek, What Do We Know About Gay and Lesbian Couples?, 14 Current Directions Psychol. Sci. 251 (2005); Peplau & Fingerhut, supra note 12; Peplau & Ghavami, supra note 12.
15
14
16
K.F. Balsam et al., Three-Year Follow-Up of Same-Sex Couples Who Had Civil Unions in Vermont, Same-Sex Couples Not in Civil Unions, and Heterosexual Married Couples, 44
14
B. The Institution of Marriage Offers Social, Psychological, and Health Benefits That Are Denied to Same-Sex Couples.
Marriage as a social institution has a profound effect on the lives of the individuals who inhabit it. The sociologist Emile Durkheim observed that marriage helps to protect the individual from anomy, or social disruption and breakdowns of norms.17 Twentieth-century sociologists advised that marriage creates order18 and provides a strong positive sense of identity, self-worth, and mastery.19 Empirical research demonstrates that marriage has distinct benefits that extend beyond the material necessities of life.20 These intangible elements of the marital relationship have important implications for
Developmental Psychol. 102 (2008); Kurdek, Change in Relationship Quality, supra note 15; L.A. Peplau & K.P. Beals, The Family Lives of Lesbians and Gay Men, in Handbook of E. Durkheim, Suicide: A Study in Sociology 259 (J.A. Spaulding & G. Simpson trans., Glencoe, Ill.: Free Press 1951) (original work published 1897). P. Berger & H. Kellner, Marriage and the Construction of Reality: An Exercise In the Microsociology of Knowledge, 12 Diogenes 1 (1964).
19 18 17
Family Communication 233, 236 (A.L. Vangelisti ed., 2004).
W.R. Gove et al., The Effect of Marriage on the Well-Being of Adults: A Theoretical Analysis, 11 J. Fam. Issues 4, 16 (1990).
See S. Stack & J.R. Eshleman, Marital Status and Happiness: A 17-Nation Study, 60 J. Marriage & Fam. 527 (1998); R.P.D. Burton, Global Integrative Meaning as a Mediating Factor in the Relationship Between Social Roles and Psychological Distress, 39 J. Health & Soc. Behav. 201 (1998); Gove et al., supra note 19, at 5.
20
15 the physical and psychological health of married individuals and for the relationship itself. Because marriage rights have been granted to same-sex couples only recently and only in a few jurisdictions, no empirical studies have yet been published that compare married same-sex couples to unmarried same-sex couples, or those in civil unions. Based on their scientific and clinical expertise, Amici believe it is appropriate to extrapolate from the empirical research literature for heterosexual coupleswith qualifications as necessaryto anticipate the likely effects of marriage for same-sex couples.21 Married men and women generally experience better physical and mental health than their unmarried counterparts.22 These health benefits do
21
(2000). It is reasonable to expect that same-sex couples who choose to marry, like their heterosexual counterparts, will benefit from the institution of marriage itself.
Protection and Marital Selection: Evidence from a HistoricalProspective Sample of American Men, 37 Demography 511
Researchers recognize that comparisons between married and unmarried heterosexual couples are complicated by the possibility that observed differences might be due to selfselection. After extensive study, however, researchers have concluded that benefits associated with marriage result largely from the institution itself rather than self-selection. See, e.g., Gove et al., supra note 19, at 10; J.E. Murray, Marital
Soc. 1065 (2002).
See N.J. Johnson et al., Marital Status and Mortality: The National Longitudinal Mortality Study, 10 Annals Epidemiology 224 (2000); C.E. Ross et al., The Impact of the Family on Health: The Decade in Review, 52 J. Marriage & Fam. 1059 (1990); R.W. Simon, Revisiting the Relationships Among Gender, Marital Status, and Mental Health, 107 Am. J.
22
16 not appear to result simply from being in an intimate relationship, for most studies have found that married heterosexual individuals generally manifest greater well-being than those of comparable cohabiting couples.23 Of course, marital status alone does not guarantee greater health or happiness. People who are unhappy in marriage often manifest lower levels of well-being than the unmarried, and marital discord and dissatisfaction is often associated with negative health effects.24 Nevertheless, satisfied married couples consistently manifest higher levels of happiness, psychological well-being, and physical health than the unmarried. Being married also is a source of stability and commitment. Marital commitment is a function not only of attractive forces (i.e., rewarding features of the partner or relationship) but also of external forces that serve as constraints on dissolving the relationship. Barriers to terminating a marriage
See supra note 20; see also S.L. Brown, The Effect of Union Type on Psychological Well-Being: Depression Among Cohabitors Versus Marrieds, 41 J. Health & Soc. Behav. 241 (2000). But see, e.g., C.E. Ross, Reconceptualizing Marital Status as a Continuum of Social Attachment, 57 J. Marriage &
23
Fam. 129 (1995) (failing to detect significant differences in depression between married heterosexuals and comparable cohabiting heterosexual couples).
See W.R. Gove et al., Does Marriage Have Positive Effects on the Psychological Well-Being of the Individual?, 24 J. Health & Soc. Behav. 122 (1983); K. Williams, Has the Future of Marriage Arrived? A Contemporary Examination of Gender, Marriage, and Psychological Well-Being, 44 J. Health & Soc. Behav. 470 (2003); J.K. Kiecolt-Glaser & T.L. Newton, Marriage and Health: His and Hers, 127 Psychol. Bull. 472 (2001).
24
17 include feelings of obligation to ones family members; moral and religious values; legal restrictions; financial concerns; and the anticipated disapproval of others.25 In the absence of adequate rewards, the existence of barriers alone is not sufficient to sustain a marriage in the long term. Perceiving ones intimate relationship primarily in terms of rewards, rather than barriers to dissolution, is likely to be associated with greater relationship satisfaction.26 Nonetheless, perceived barriers are negatively correlated with divorce and thus the presence of barriers may increase partners motivation to seek solutions for problems, rather than rushing to dissolve a salvageable relationship.27 Lacking access to legal marriage, the primary motivation for same-sex couples to remain together derives mainly from the rewards associated with the relationship rather than from formal barriers to separation.28 Given this fact, and the legal and
See G. Levinger, Marital Cohesiveness and Dissolution: An Integrative Review, 27 J. Marriage & Fam. 19 (1965); J.M. Adams & W.H. Jones, The Conceptualization of Marital Commitment: An Integrative Analysis, 72 J. Personality & Soc.
Psychol. 1177 (1997).
26 25
Fam. 561 (2003).

27
See, e.g., D. Previti & P.R. Amato, Why Stay Married? Rewards, Barriers, and Marital Stability, 65 J. Marriage &
See T.B. Heaton & S.L. Albrecht, Stable Unhappy Marriages, 53 J. Marriage & Fam. 747 (1991); L.K. White & A. Booth, Divorce Over the Life Course: The Role of Marital Happiness, 12 J. Fam. Issues 5 (1991).
28
L.A. Kurdek, Relationship Outcomes and Their Predictors: Longitudinal Evidence from Heterosexual Married, Gay
18 prejudicial obstacles that same-sex partners face, the prevalence and durability of same-sex relationships are striking. IV. The Children of Same-Sex Couples.
A. Many Same-Sex Children.
Couples
Are
Raising
The 2010 Census reported 111,033 households headed by same-sex couples with their own children under 18 years. Among the more than 90,000 California household heads who reported cohabiting with a same-sex partner, 15,698 had their own children under 18 living at home.29 The number of same-sex couple households reported by the Census is not an estimate of the total number of gay and lesbian parents.30
B. The Factors That Affect the Adjustment of Children Are Not Dependent on Parental Gender or Sexual Orientation.
Hundreds of studies over the past 30 years have elucidated the factors that are associated with healthy adjustment among children and
Cohabiting, and Lesbian Cohabiting Couples, 60 J. Marriage &

Fam. 553 (1998). 2010 Census and 2010 American Community Survey, supra note 14.
30 29
The Census does not directly assess participants sexual orientation. Thus, the Census data only include gay and lesbian parents who were co-habiting with a same sex partner and who were willing to report their relationship status to the Census. 2010 Census and 2010 American Community Survey, supra note 14.
19 adolescentsi.e., the influences that allow children and adolescents to function well in their daily lives.31 The three most important are (1) the qualities of parent-child relationships, (2) the qualities of relationships among significant adults (e.g., parents) in childrens or adolescents lives, and (3) available economic and other resources. As one noted authority in developmental psychology explained: Many studies have shown that adjustment is largely affected by differences in the quality of parenting and parent-child relationships, the quality of the relationships between the parents, and the richness of the economic and social resources available to the family; more recent research signals the importance of congenital differences as well. Dimensions of family structure including such factors as divorce, single parenthood, and the parents sexual orientation and biological relatedness between parents and children are of little or no predictive importance once the process variables are taken into account,
S. Golombok, Parenting: What Really Counts? (2000); M.E. Lamb & C. Lewis, The Role of Parent-Child Relationships in Child Development, in Developmental Science: An Advanced Textbook 429-68 (M.H. Bornstein & M.E. Lamb eds., 5th ed. 2005); C.J. Patterson, & P.D. Hastings, Socialization in the Context of Family Diversity, in Handbook of Socialization: Theory and Research 328-51 (J.E. Grusec & P.D. Hastings eds., 2007).
31
20 because the same factors explain child adjustment regardless of family structure.32 In short, many years of research have shown that, when parent-child and parent-adolescent relationships are characterized by warmth, love and affection, emotional commitment, reliability, and consistency, as well as by appropriate guidance and limit-setting, children and adolescents are likely to show more positive adjustment than when these qualities are absent. Children whose parents provide loving guidance in the context of secure home environments are more likely to flourish, regardless of their parents sexual orientation.33 Research also shows that the quality of relationships among significant adults in a childs life is associated with adjustment. When parental relationships are characterized by love, warmth, cooperation, security, and mutual support, children are more likely to show positive adjustment. In contrast, when parental relationships are conflictridden and acrimonious, adjustment is likely to be less favorable. Family instability, household disruption, and parental divorce are often associated with poorer adjustment and problems that can last
32
Factors
33
M.E. Lamb, Mothers, Fathers, Families, and Circumstances: Affecting Childrens Adjustment, 16 Applied Developmental Sci. 98 (2012).
Lamb & Lewis, supra note 31; Patterson & Hastings, supra note 31.
21 into adulthood.34 These correlations are just as true for children reared by same-sex couples as for children reared by heterosexual couples.35 Research with children reared by heterosexual parents indicates that they do better with two parenting figures than with one.36 This finding, however, has not been tested directly with children reared by same-sex couples versus a single lesbian, gay, or bisexual parent. Finally, researchers acknowledge the association between child adjustment and access to economic and other resources. Children with access to sufficient economic resources are likely to live in safer neighborhoods, breathe cleaner air, and eat more nutritious food. They are also more likely to have opportunities to participate in positive afterSee, e.g., P.R. Amato, Children of Divorce in the 1990s: An Update of the Amato and Keith (1991) Meta-Analysis, 15 J.
34
Fam. Psychol. 355 (2001).
The Family Context of Parenting in Childrens Adaptation to Elementary School (P.A. Cowan et al. eds., 2005); R.W. Chan et al., Psychosocial Adjustment Among Children Conceived Via Donor Insemination By Lesbian and Heterosexual Mothers, 69 Child Dev. 443 (1998); E.M. Cummings et al., Childrens Responses to Everyday Marital Conflict Tactics in the Home, 74 Child Dev. 1918 (2003); E.M. Cummings et al., Everyday Marital Conflict and Child Aggression, 32 J. Abnormal Child Psychol. 191 (2004); Golombok, supra note 31; D. Potter, SameSex Parent Families and Childrens Academic Achievement, 74 J. Marriage & Fam. 556 (2012); M.J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010).
36
35
See, e.g., S. McLanahan & G. Sandefur, Growing Up With a Single Parent: What Hurts, What Helps 39 (1994).
22 school activities and hence to have access to social and emotional resources from teammates, coaches, youth leaders, and others. These children are more likely to show positive adjustment, regardless of their parents sexual orientation.37 In short, the very same factors that are linked to positive development of children with heterosexual parents are also linked to positive development of children with lesbian and gay parents.38
C. There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted.
Assertions that heterosexual couples are better parents than same-sex couples, or that the children of lesbian or gay parents fare worse than children of heterosexual parents, are not supported by the
Neighborhood Poverty: Context and Consequences for Children (J. Brooks-Gunn et al. eds., 1997); Consequences of Growing Up Poor (G.J. Duncan & J. Brooks-Gunn eds., 1997); Patterson & Hastings, supra note 31; Potter, supra note 35; Rosenfeld, supra note 35.
37
Identities, Nebraska Symposium on Motivation 141 (D.A. Hope ed., 2009); J. Stacey & T.J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am. Soc. Rev. 159 (2001); C.J. Telingator & C.J. Patterson, Children and Adolescents of Lesbian and Gay Parents, 47 J. Am. Acad. Child & Adolescent Psychiatry 1364 (2008); J.L. Wainright et al., Psychosocial
See Chan et al., supra note 35; C.J. Patterson, Lesbian and Gay Parents and Their Children: A Social Science Perspective, in Contemporary Perspectives on Lesbian, Gay, and Bisexual
38
Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex Parents, 75 Child Dev. 1886 (2004).
23 cumulative scientific research in this area.39 Rather, the vast majority of scientific studies that have directly compared gay and lesbian parents with heterosexual parents has consistently shown that the former are as fit and capable parents as the latter and that their children are as psychologically healthy and well adjusted. More research has focused on lesbian mothers than on gay fathers,40 but the
The research on gay, lesbian, and bisexual parents includes dozens of empirical studies. Their findings are summarized in reviews of empirical literature published in respected, peerreviewed journals and academic books. Recent reviews include T.J. Biblarz & J. Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Fam. 3 (2010); A.E. Goldberg, Lesbian and Gay Parents and Their Children: Research on the Family Life Cycle (2010); C.J. Patterson, Family Lives of Lesbian and Gay Adults, in Handbook of Marriage and the Family 659, 668-71 (G.W. Peterson & K.R. Bush eds., 3d ed. 2013); C.J. Patterson, Children of Lesbian and Gay Parents: Psychology, Law, and Policy, 64 Am. Psychologist 727 (2009). For earlier reviews, see, e.g., Stacey & Biblarz, supra note 38; E.C. Perrin & Comm. on Psychosocial Aspects of Child & Fam. Health, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002); C.J. Patterson, Family Relationships of Lesbians and Gay Men, 62 J. Marriage & Fam. 1052 (2000); N. Anderssen et al., Outcomes for Children
39
with Lesbian or Gay Parents: A Review of Studies from 1978 to 2000, 43 Scand. J. Psychol. 335 (2002).
40
See, e.g., H. Bos & T.G.M. Sandfort, Childrens Gender Identity in Lesbian and Heterosexual Two-Parent Families, 62 Sex Roles 114 (2010); R.H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164, 176 (2010); S. Golombok et al., Children with Lesbian Parents: A Community Study, 39 Developmental Psychol. 20 (2003); I. Rivers et al., Victimization, Social Support, and Psychosocial Functioning Among Children of Same-Sex and Opposite-Sex Couples in the United Kingdom, 44 Developmental Psychol.
24 published studies that have included gay fathers also find that they are as fit and able parents as heterosexual fathers.41 A 2001 comprehensive survey of peer-reviewed scientific studies concluded that the evidence from empirical research shows that parental sexual orientation per se has no measurable effect on the quality of parent-child relationships or on childrens mental health or social adjustment.42 A more recent review by the same authors noted the ubiquitous findings of no differences in comparisons of the families of heterosexual couples to those of lesbian or gay couples, but focused on the relatively small number of differences that have been reported, concluding that overall the differences were positive for the families of same-sex couples at least as often
127 (2008); J.L. Wainright & C.J. Patterson, Delinquency,
Victimization, and Substance Use Among Adolescents With Female Same-Sex Parents, 20 J. Fam. Psychol. 526 (2006).
Farr et al., supra note 40, at 176; see also S. Erich et al., Gay and Lesbian Adoptive Families: An Exploratory Study of Family Functioning, Adoptive Childs Behavior, and Familial Support Networks, 9 J. Fam. Soc. Work 17 (2005); S. Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 J. GLBT Fam. Stud. 43 (2005). For a review of earlier research, see C.J. Patterson, Gay Fathers, in The Role of the Father in Child Development 397, 413 (M.E. Lamb ed., 4th ed. 2004). Stacey & Biblarz, supra note 38, at 176.
41
42
25 as they were for the families of heterosexual couples.43 These conclusions are bolstered by three recent studies using national probability (i.e., representative) samples. One used data from the National Longitudinal Study of Adolescent Health to compare adolescents parented by a female couple with adolescents parented by a heterosexual couple. The researchers found no differences between the two groups of adolescents on measures of a large number of key variables, including psychosocial adjustment, school outcomes, substance use, delinquency, victimization experiences, and 44 relationships with peers. Another study used data from the Early Childhood Longitudinal Study Kindergarten cohort (ECLS-K) to compare the academic achievement of children growing up in various family structures. When the effects of significant family transitions (e.g., related
43
about Gender to their Children: The Role of Gendered Environments, 58 Sex Roles 501 (2008) (finding that the
Biblarz & Stacey, supra note 39, at 13; see also E.L. Sutfin et al., How Lesbian and Heterosexual Parents Convey Attitudes
children of lesbian mothers were more tolerant of other children engaging in behaviors that violate traditional gender norms). Similarly, a recent report by the National Academy of Sciences Institute of Medicine concluded that [s]tudies show that [the children of lesbian and gay parents] are well adjusted and developmentally similar to the children of different-sex parents. Institute of Medicine, supra note 3, at 234.
44
J.L. Wainright & C.J. Patterson, Peer Relations Among Adolescents With Female Same-Sex Parents, 44 Developmental Psychol. 117 (2008); Wainright & Patterson, supra note 40; Wainright et al., supra note 38.
26 to parental divorce, separation, or death) were taken into account, children in same-sex family structures showed slightly higher achievement levels than children living with their biological mother and father (although this difference was not statistically significant).45 In the third study, US Census data were used to compare educational outcomes among children residing in homes with various types of family structure. When differences in household income and parental educational levels (SES) were statistically controlled, the differences in school progress between children of married heterosexual couples and same-sex cohabiting couples were not statistically significant. As the studys author concluded, [t]he analysis in this article, the first to use large-sample nationally representative data, shows that children raised by same-sex couples have no fundamental deficits in making normal progress through school.46 Studies also show that children with gay or lesbian parents do not differ from the children of heterosexual parents in their gender identity (ones psychological sense of being male or female).47
Potter, supra note 35. Data about parents sexual orientation were not collected in the study. Consequently, parental sexual orientation and relationship were inferred from a series of questions about the household composition and caretakers. 46 Rosenfeld, supra note 35.
47
45
E.g., Bos & Sandfort, supra note 40. For literature reviews, see Goldberg, supra note 39; Patterson, Family Lives, supra note 39; Perrin & Comm., supra note 39, at 342.
27 Similarly, although some studies have found that children of lesbian mothers or children raised in same-sex parent families were more accepting of gender nonconformity in others48 and less genderstereotyped or more flexible in their patterns of gender-role behaviors (e.g., during play49) than those of children in heterosexual parent families, most published studies have found no reliable differences between the children of lesbian and heterosexual mothers in social gender role conformity (adherence to cultural norms defining feminine and masculine behavior). 50 A recent study also found that adoptive children of gay fathers showed typical gender role development, as did those of lesbian mothers and those of heterosexual mothers and fathers.51 The available evidence also suggests that parental sexual orientation has no effect on child sexual
Sutfin et al., supra note 43; M. Fulcher et al., Individual Differences in Gender Development: Associations with Parental Sexual Orientation, Attitudes, and Division of Labor, 58 Sex Roles 330 (2008).
49 48
Sexual Behav. 167 (1986). An earlier paper (M.E. Hotvedt & J.B. Mandel, Children of Lesbian Mothers, in Homosexuality: Social, Psychological, and Biological Issues 275 (W. Paul et al. eds., 1982)) reported data from the same study.
50
A.E. Goldberg et al., Gender-Typed Play Behavior in Early Childhood: Adopted Children with Lesbian, Gay, and Heterosexual Parents, 67 Sex Roles 503 (2012); R. Green et al., Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 Archives
Farr et al., supra note 40. For reviews of the literature, see Goldberg, supra note 39; Patterson, Family Lives, supra note 39.
51
See Farr et al., supra note 40.
28 orientation52 and that the vast majority of gay and lesbian adults were raised by heterosexual parents and the vast majority of children raised by gay and lesbian parents grow up to be heterosexual.53
Amici emphasize that the abilities of gay and lesbian persons as parents and the positive outcomes for their children are not areas where credible scientific researchers disagree.54 Thus, after careful scrutiny of decades of research, the American Psychological Association concluded in 2004 that (a) there is no scientific evidence that parenting effectiveness is related to parental sexual
Golombok et al., supra note 40; S. Golombok & F. Tasker, Do Parents Influence the Sexual Orientation of Their Children? Findings from a Longitudinal Study of Lesbian Families, 32 Developmental Psychol. 3 (1996).
53
52
Goldberg, supra note 39; Patterson, Family Lives, supra note 39. One unreplicated 1996 Australian study purports to show deficits in lesbian and gay parents and their children. See S. Sarantakos, Children in Three Contexts: Family, Education and Social Development, 21 Child. Australia 23 (1996). But the anomalous Sarantakos results are likely the result of multiple methodological problems, especially confounding the effects of parental sexual orientation with the effects of parental divorce, which is known to correlate with poor adjustment and academic performance. See, e.g., Amato, supra note 34. Some commentators have cited publications by Paul Cameron, but his work has been repeatedly discredited for bias and inaccuracy. See G.M. Herek, Bad Science in the Service of Stigma: A Critique of the Cameron Groups Survey Studies, in Stigma and Sexual Orientation: Understanding Prejudice Against Lesbians, Gay Men, and Bisexuals 223 (G.M. Herek ed., 1998); Baker v. Wade, 106 F.R.D. 526, 536 (N.D. Tex. 1985) (ruling that Cameron made misrepresentations to the court).
54
29 orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children and (b) that research has shown that the adjustment, development, and psychological well-being of children are unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish. Am. Psychol. Assn, Resolution on Sexual Orientation, Parents, and Children (2004), available at http://www.apa.org/about/governance/council/ policy /parenting.pdf. Similarly, the American Academy of Pediatrics has recently adopted a policy statement which states: Scientific evidence affirms that children have similar developmental and emotional needs, and receive similar parenting, whether they are raised by parents of the same or different genders. If a child has 2 living and capable parents who choose to create a permanent bond by way of civil marriage, it is in the best interests of their child(ren) that legal and social institutions allow and support them to do so, irrespective of their sexual orientation. Am. Acad. of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Policy Statement: Promoting the Well-Being of Children Whose Parents are Gay or Lesbian, 131 Pediatrics (forthcoming 2013). NASW has similarly determined that [t]he most striking feature of the research on lesbian mothers, gay fathers, and their children is the absence of pathological findings. The second most striking feature is how similar the groups of gay and lesbian parents and their children are to heterosexual
30 parents and their children that were included in the studies. Natl Assn of Soc. Workers, Policy Statement: Lesbian, Gay, and Bisexual Issues, in Social Work Speaks 193, 194 (4th ed. 1997). See also Natl Assn of Soc. Workers, Policy Statement: Family Planning and Reproductive Choice, in Social Work Speaks 129, 132 (9th ed. 2012). The American Psychoanalytic Association has likewise determined that [t]here is no credible evidence that shows that a parents sexual orientation or gender identity will adversely affect the development of the child. Am. Psychoanalytic Assn, Position Statement: Parenting (2012), available at http://www.apsa.org/about_apsaa/ position_statements/parenting.aspx. In adopting an official Position Statement in support of legal recognition of same-sex civil marriage, the American Psychiatric Association observed that no research has shown that the children raised by lesbians and gay men are less well adjusted than those reared within heterosexual relationships. Am. Psychiatric Assn, Position Statement: Support of Legal Recognition of Same(2005), available at Sex Civil Marriage http://www.psych.org/Departments/EDU/ Library/APAOfficialDocumentsandRelated/PositionS tatements/200502.aspx. Finally, the American Medical Association likewise has adopted a policy supporting legislative and other reforms to allow adoption by same sex partners. 55
55
See Am. Med. Assn, Policy H-60.940, Partner Co-Adoption, available at http://www.ama-assn.org/ama/pub/about-ama/our-
31 V. Challenges to the Evidence on Same-Sex Parents by Other Amici Are Unfounded.
A. The Methodological Criticisms Fail to Recognize the Cumulative Nature of Scientific Research.
Scientific research is a cumulative process. Empirical studies inevitably have limitations. Simply because a particular studys methodology has imperfections or its results warrant qualifications does not mean that the entire study should be dismissed. Rather, it should be evaluated within the context of the cumulative relevant research, recognizing that some studies strengths can offset other studies corresponding limitations. area because some studies used small nonprobability samples56 ignore the fact that many findings from those studies have been replicated in national probability samples.57 They also fail to acknowledge that studies with nonprobability samples can answer
Amici who challenge all empirical findings in this
people/member-groups-sections/glbt-advisory-committee/amapolicy-regarding-sexual-orientation.page.
56
57
E.g., Amicus Br. of Social Science Professors, at 13-21.
Wainright & Patterson, Delinquency, supra note 40 (finding no differences due to parent sexual orientation between 44 adolescents raised by same-sex couples and 44 by heterosexual couples, all drawn from a national representative sample); Wainright & Patterson, Peer Relations, supra note 44 (same); Potter, supra note 35; Rosenfeld, supra note 35 (using US Census data).
32 important scientific questions, especially when they include appropriate comparison groups.58 Moreover, amici do not claim the studies are invalid, only that their implications are limited to children raised by highly educated and affluent middle to upper class white women.59 Even in those studies that are so limited, appropriate comparison across sexual orientation groups can test the claim that sexual orientation affects parenting, and the recent research on national probability samples reinforces these studies. Amici herein do not claim that all same-sex couples will be equally effective in raising children,60 but rather that sexual orientation is irrelevant to parenting outcomes.61
See supra note 2. One amicus disparages nearly all previous studies because they failed to include a married biological family control group. Amicus Br. of Social Science Professors, at 25. But many studies have appropriately included such a group, and their findings are largely consistent with the overall patterns described herein. See, e.g., Potter, supra note 35; Rosenfeld, supra note 35; Wainright & Patterson, Peer Relations, supra note 44; Wainright & Patterson, Delinquency, supra note 40; Wainright et al., supra note 38. Moreover, the correct comparison group depends on the nature of the study. For example, comparing children of married heterosexual couples to children of single lesbian mothers would conflate parent sexual orientation with number of parents. The appropriate comparison group in such studies is the children of single heterosexual mothers.
59 60 58
E.g., Amicus Br. of Social Science Professors, at 20.
E.g., factors such as access to economic resources affect child development outcomes (note 26 above).
61
Several amici criticizing studies cited here rely on L. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer
33
B. The Regnerus Study Does Not Provide Evidence That Parental Sexual Orientation Affects Child Development Outcomes.
Several amici base their challenge on a recent study (the Regnerus study) that compared child development outcomes across a range of family types, including two types that were characterized as lesbian mother and gay father families.62 But the studys design precludes any meaningful conclusions because of its overbroad definition of children raised by gay or lesbian parents and its conflation of family instability with any potential effects of parental sexual orientation. The methodological flaws in the study are examined in greater detail in the Brief of The American Psychological Association et al. filed on March 1, 2013 in United States v. Windsor, et al., No. 12-307, at pages 29 to 34. Those flaws led an independent auditor appointed by the journal that published the study to describe it as a non-scientific study and conclude it should not have been
Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012).
Marks opined that studies cited in an APA 2005 pamphlet (not a brief) allow no conclusions regarding lesbian and gay parenting. This wholesale rejection of an entire body of research fails to recognize the realities of the nature of scientific knowledge as discussed above. Moreover, Amicis conclusions drawn from those earlier studies are borne out by the research subsequent to 2005.
M. Regnerus, How Different are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752 (2012).
62
34 published.63 Moreover, over 200 scientists, clinicians, and academics signed a letter to the journal's editorial board commenting on the studys scientific deficiencies.64 VI. Denying the Status of Marriage to Same-Sex Couples Stigmatizes Them. The foregoing shows that the beliefs about gay men and lesbian women advanced to support Proposition 8about their capacity for committed, long lasting relationships, and their ability to raise healthy welladjusted childrenare contradicted by the scientific evidence and instead reflect an unreasoned antipathy towards an identifiable minority. In depriving gay men and lesbian women of membership in an important social institution, Proposition 8 conveys the states judgment that committed intimate relationships between people of the same sex are inferior to heterosexual relationships. This is the essence of stigma. A stigmatized condition or status is negatively valued by society, defines a persons social identity,
63
D.E. Sherkat, The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance, 41 Soc. Sci. Res. 1346 (2012).
64
G.J. Gates et al., Letter to the editors and advisory editors of Social Science Research, 41 Soc. Sci. Res. 1350, 1351 (2012) (noting that the study could not actually directly examine the impact of having a gay or lesbian parent because of the unusual method of defining those groups, and that it fails to distinguish family structure and family instability, and concluding that [t]he methodologies used in this paper and the interpretation of the findings are inappropriate).
35 and thus disadvantages that person.65 A classic work in this area characterized stigma as an undesired differentness.66 It can be manifested both in social institutions, such as the law, and in individual behaviors. Laws that accord majority and minority groups differing status highlight the perceived differentness of the minority and thereby tend to legitimize prejudicial attitudes and individual acts against the disfavored group, including ostracism, harassment, discrimination, and violence. Large numbers of lesbian, gay, and bisexual people experience such acts of prejudice because of their sexual orientation.67
See E. Goffman, Stigma: Notes on the Management of Spoiled Identity (1963); B.G. Link & J.C. Phelan, Conceptualizing Stigma, 27 Ann. Rev. Soc. 363 (2001); J. Crocker et al., Social Stigma, in 2 The Handbook of Social Psychology 504 (D.T. Gilbert et al. eds., 4th ed. 1998); Am. Med. Assn, Policy H65.973, Health Care Disparities in Same-Sex Partner Households, available at http://www.ama-assn.org/ama/pub/ about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.page (recognizing that exclusion from civil marriage contributes to health care disparities affecting same-sex households).
66
67
65
Goffman, supra note 65, at 5.
A national survey of a representative sample of gay, lesbian, and bisexual adults found that 21% of them had been the target of a physical assault or property crime since age 18 because of their sexual orientation. Thirty-eight percent of gay men had been the target of assault or property crime because of their sexual orientation. Eighteen percent of gay men and 16% of lesbians reported they had experienced discrimination in housing or employment. G.M. Herek, Hate Crimes and Stigma-
Related Experiences Among Sexual Minority Adults in the United States: Prevalence Estimates from a National
36 Proposition 8 is an instance of institutional stigma. It conveys the governments judgment that, in the realm of intimate relationships, a legally united same-sex couple is inherently less deserving of societys full recognition than are heterosexual couples. As the Ninth Circuit correctly recognized, Proposition 8 lessen[s] the status and human dignity of gays and lesbians in California. Perry, 671 F.3d at 1063. By devaluing and delegitimizing the relationships that constitute the very core of a homosexual orientation, Proposition 8 compounds and perpetuates the stigma historically attached to homosexuality. This Court has repeatedly recognized the unconstitutional nature of stigmatizing legislation based on stereotypic classifications. See Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) ([A]s we have repeatedly emphasized, discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community* * * can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.) (footnote and citations omitted).
Consulting & Clinical Psychol. 945, 948 (1999); M.V.L. Badgett, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001).
Probability Sample, 24 J. Interpersonal Violence 54 (2009); see also G.M. Herek et al., Psychological Sequelae of Hate-Crime Victimization Among Lesbian, Gay, and Bisexual Adults, 67 J.
37 CONCLUSION The judgment below should be affirmed. Respectfully submitted,

NATHALIE F.P. GILFOYLE AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Street, N.E. Washington, DC 20002 (202) 336-6186 PAUL M. SMITH
JENNER & BLOCK LLP 1099 New York Avenue, NW Washington, DC 20001 (202) 639-6000 PSmith@jenner.com WILLIAM F. SHEEHAN ANDREW HUDSON GOODWIN | PROCTER LLP 901 New York Avenue, NW Washington, D.C. 20001 (202) 346-4000
Counsel of Record
Counsel for Amici Curiae

February 28, 2013
NOS. 12-144, 12-307
In the Supreme Court of the United States

DENNIS HOLLINGSWORTH, ET AL., Petitioners,
v.
KRISTIN M. PERRY, ET AL., Respondents. UNITED STATES, Petitioner,
v.
EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, AND BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Respondents. On Writs of Certiorari to the United States Courts of Appeals for the Ninth and Second Circuits BRIEF OF AMICUS CURIAE AMERICAN SOCIOLOGICAL ASSOCIATION IN SUPPORT OF RESPONDENT KRISTIN M. PERRY AND RESPONDENT EDITH SCHLAIN WINDSOR
Carmine D. Boccuzzi, Jr. (Counsel of Record) Scott Thompson Mark Lightner CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY 10006 (212) 225-2000
cboccuzzi@cgsh.com
Counsel for Amicus Curiae American Sociological Association
Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001
i TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. SCHOLARLY CONSENSUS IS CLEAR: CHILDREN OF SAME-SEX PARENTS FARE JUST AS WELL AS CHILDREN OF OPPOSITE-SEX PARENTS . . . . . . . . . . . . . . . . 6 II. THE RESEARCH CLAIMED TO UNDERMINE THE CONSENSUS EITHER DOES NOT ADDRESS SAME-SEX PARENTS AND THEIR CHILDREN OR IS MISCHARACTERIZED . . 15 A. THE REGNERUS STUDY DOES NOT SUPPORT CONCLUSIONS REGARDING THE IMPACT OF BEING RAISED BY SAME-SEX PARENTS . . . . . . . . . . . . . . . . . 16 B. THE STUDIES CITED BY BLAG, THE PROPOSITION 8 PROPONENTS, AND THEIR AMICI DO NOT ADDRESS SAMESEX PARENTS AND THEREFORE DO NOT UNDERMINE THE CONSENSUS . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ii TABLE OF AUTHORITIES Page(s) Cases Atkins v. Virginia, 536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . 5 Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . . . . . . 29 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert. granted, 133 S. Ct. 786 (U.S. 2012) . . . . . . . . . . . . . . . . . . . . . . 4 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), affd, 671 F.3d 1052 (9th Cir. 2012), cert. granted, 133 S. Ct. 786 (U.S. 2012) . . . . . . . . . . . . . . . . . . passim Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . 5, 29 Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . 2 Roper v. Simmons, 548 U.S 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 5 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) . . . . . . . . . . . . . . . 27
iii Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012) . . . . . . . . . . . 4 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), aff'd, 699 F.3d 169 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012) . . . . . . . . . . . . 4 Other Authorities Alicia L. Fedewa & Teresa P. Clark, Parent Practices and Home-School Partnerships: A Differential Effect for Children with Same-Sex Coupled Parents?, 5 Journal of GLBT Family Studies 312 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 8 Brent Miller et al., Comparisons of Adopted and Non-Adopted Adolescents in a Large, Nationally Representative Sample, 71 Child Development 1458 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health (C.H. Zeanah Jr. ed., 2d ed. 2000) . . . . 28 Charlotte J. Patterson & Jennifer L. Wainright, Adolescents with Same-Sex Parents: Findings from the National Longitudinal Study of Adolescent Health, in Adoption by Lesbians and Gay Men: A New Dimension in Family Diversity (David M. Brodzinsky & Adam Pertman eds., 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iv Chris Johnson, Anti-Gay Briefs Mischaracterized Study, Washington Blade (Jan. 25, 2013), http://www.washingtonblade.com/2013/01/25/a nti-gay-legal-briefs-mischaracterized-parentingstudy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Daniel Potter, Same-Sex Parent Families and Childrens Academic Achievement, 74 Journal of Marriage & Family 556 (2012) . . . . . . . . . . . . . . 7 David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012 . . . . . . . . . 7 David Popenoe, Life without Father: Compelling New Evidence that Fatherhood & Marriage Are Indispensable for the Good of Children & Society (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography (Nov. 2012), http://link.springer.com/article/10.1007 /s13524-012-0169-x/fulltext.html . . . . . . . . . . . . 8 Eleanor Maccoby, The Two Sexes (1998) . . . . . . . . 28 Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26 Developmental and Behavioral Pediatrics 224 (2005) . . . . . . . . . . . 10 Gary J. Gates et al., Letter to the Editor and Advisory Editors of Social Science Research, 41 Social Science Research 1350 (2012) . . . . . . . . . 20
v Jennifer L. Wainright & Charlotte J. Patterson, Delinquency, Victimization, and Substance Use Among Adolescents with Female Same-Sex Parents, 20 Journal of Family Psychology 526 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Jennifer L. Wainright & Charlotte J. Patterson, Peer Relations Among Adolescents with Female Same-Sex Parents, 44 Developmental Psychology 117 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Jennifer L. Wainright et al., Psychosocial Adjustment, School Outcomes, and Romantic Relationships of Adolescents with Same-Sex Parents, 75 Child Development 1886 (2004) 9, 10 Joseph G. Kosciw & Elizabeth M. Diaz, Involved, Invisible, Ignored: The Experiences of Lesbian, Gay, Bisexual, and Transgender Parents and Their Children in Our Nations K-12 Schools, Gay, Lesbian and Straight Education Network (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Justin A. Lavner et al., Can Gay and Lesbian Parents Promote Healthy Development in HighRisk Children Adopted from Foster Care?, 82 American Journal of Orthopsychiatry 465 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Kristen Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, Child Trends Research Brief (2002), http://www. childtrends.org/files/marriagerb602.pdf 23, 24, 25
vi Loes van Gelderen et al., Quality of Life of Adolescents Raised from Birth by Lesbian Mothers: The US National Longitudinal Family Study, 33 Journal of Developmental & Behavioral Pediatrics 1 (2012) . . . . . . . . . . 10-11 Margaret Somerville, Childrens Human Rights to Natural Biological Origins and Family Structure , 1 International Journal of Jurisprudence of the Family 35 (2010) . . . . . . . 27 Marilyn Coleman et al., Reinvestigating Remarriage: Another Decade of Progress, 62 Journal of Marriage & Family 1288 (2000) . . . 23 Mark Oppenheimer, In Shift, an Activist Enlists Same-Sex Couples in a Pro-Marriage Coalition, N.Y. Times, Jan. 29, 2013 . . . . . . . . . . . . . . . . . . 7 Mark Regnerus, How Different Are the Adult Children of Parents who have Same-Sex Relationships? Findings from the New Family Structures Survey, 41 Social Science Research 752 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . passim Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41 Social Science Research 1367 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 Mark V. Flinn et al., Growth and Fluctuating Assymetry of Stepchildren, 20 Evolutionary Human Behavior 465 (1999) . . . . . . . . . . . . . . . 23
vii Michael J. Rosenfeld, Reply to Allen et al., Demography (Nov. 2012), http://link.springer. com/article/10.1007%2Fs13524-012-0170-4 . . . . 9 Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010) . . . . . . . . . . . . . . . . . . . . 8 Michael Lamb, Mothers, Fathers, Families, and Circumstances: Factors Affecting Childrens Adjustment, 16 Applied Developmental Science 98 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7, 11 Nanette Gartrell & Henny W. Bos, US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents, 126 Pediatrics 28 (2010) . . 11, 13, 27 Nanette Gartrell et al., Adolescents of the U.S. National Longitudinal Lesbian Family Study: Sexual Orientation, Sexual Behavior, and Sexual Risk Exposure, 40 Archives of Sexual Behavior 1199 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Nanette Gartrell et al., New Trends in Same-Sex Sexual Contact for American Adolescents, 41 Archives of Sexual Behavior 5 (2012) . . . . . 12-13 Nicholas H. Wolfinger, Understanding the Divorce Cycle: The Children of Divorce in Their Own Marriages (2005) . . . . . . . . . . . . . . . . . . . . . . . . 23 Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Society 27 (2004) . . . . . . . . . . . . . 31
viii Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy, 26 Law & Policy 87 (2004) . . 25-26 Paul R. Amato & Fernando Rivera, Paternal Involvement and Childrens Behavior Problems, 61 Journal of Marriage & Family 375 (1999) . . 28 Paul R. Amato & Frieda Fowler, Parenting Practices, Child Adjustment, and Family Diversity, 64 Journal of Marriage & Family 703 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Rachel H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Science 164 (2010) . . . . . . . . . . 11 Rand D. Conger et al., Socioeconomic Status, Family Processes, and Individual Development, 72 Journal of Marriage & Family 685 (2010) . . 14 Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent (1994) . . . . . . . . . . . . . . . . 23 Scott Ryan, Parent-Child Interaction Styles between Gay and Lesbian Parents and Their Adopted Children, 3 Journal of GLBT Family Studies 105 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in Adolescent SeparationIndividuation, 62 New Directions for Child & Adolescent Development 41 (1993) . . . . . . . . . . 28
ix Stephen Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 Journal of GLBT Family Studies 43 (2005) . . . 11 Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families 65 Journal of Marriage & Family 876 (2003) . . . . . . . . . . . . . 25
1 INTEREST OF AMICUS CURIAE1 The American Sociological Association (ASA) is the national professional and scholarly association of sociologists in the United States. Founded in 1905, the ASA has more than 14,000 members, including most sociologists holding doctoral degrees from accredited universities. The ASA publishes nine leading peerreviewed journals. The ASA is committed to and bound by the highest standards of research methodology and objectivity and is dedicated to advancing sociology as a scientific discipline and profession that serves the public good. The ASA has a long history of presenting the consensus research findings of social scientists to American courts for their use in evaluating evidence and legal issues, and its conclusions are regularly relied on by courts. As part of that mission, the ASA submits this brief to present to the Court the consensus view of social scientists on certain issues raised in these casesnamely, the effects of same-sex parenting on the wellbeing of children.
Counsel for each party has consented to the filing of this Brief, as indicated by letters filed with the Clerk of the Court. Pursuant to Rule 37.6, amicus curiae state that no counsel for a party authored any part of this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief.
2 SUMMARY OF ARGUMENT In their briefs to the Court, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), the Hollingsworth Petitioners (the Proposition 8 Proponents), and their respective amici assert that children fare better with opposite-sex parents2 than with same-sex parents. They contend that this alleged fact justifies both the Defense of Marriage Act (DOMA), which denies federal recognition to legally married same-sex couples, and Proposition 8s revocation of marriage rights for samesex couples in California. For instance, BLAG argues that biological differentiation in the roles of mothers and fathers makes it rational3 to encourage situations in which children have one of each. Brief for Respondent BLAG at 48, United States v. Windsor, No. 12-307 (U.S. Jan. 22, 2013). BLAG further contends that [b]iological parents have a genetic stake in the success of their children that others, such as adoptive parents and same-sex parents, do not have. Id. at 47. The Proposition 8 Proponents advance similar arguments. See Brief for Petitioner Hollingsworth at
2
In order to be consistent with prior court decisions and the terms utilized by the parties in the courts below, we refer to male-female parents as opposite-sex parents throughout this brief. The parties dispute the appropriate level of scrutiny. However, even assuming that the lowest level of scrutiny applies, the asserted interest in childrens wellbeing cannot be accepted as a rationale for DOMA or Proposition 8. When legislative classifications bear no rational relationship to legitimate government interests, those classifications violate the equal protection clause of both the Fifth and Fourteenth Amendments. Romer v. Evans, 517 U.S. 620, 631 (1996).
3 52-53, Hollingsworth v. Perry, No. 12-144 (U.S. Jan. 22, 2013). However, the claim that same-sex parents produce less positive child outcomes than opposite-sex parentseither because such families lack both a male and female parent or because both parents are not the biological parents of their childrencontradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a childs wellbeing. The clear and consistent consensus in the social science profession is that across a wide range of indicators, children fare just as well when they are raised by same-sex parents when compared to children raised by opposite-sex parents. The social science studies cited by BLAG, Proposition 8 Proponents, and their amici to support their arguments fail to address same-sex parents at all. Accordingly, as a matter of science, these studies cannot serve as the basis for conclusions about same-sex parents and related child outcomes and do not undermine the social science consensus that children fare just as well with same-sex parents. To the extent some of the studies cited by BLAG and the Proposition 8 Proponents show that stability improves child outcomes, they confirm that
4 marriage rights for same-sex couples and the federal recognition of such marriages are likely to improve the wellbeing of children of same-sex parents by providing enhanced family stability. The research presented in this brief articulates these points in greater detail, and demonstrates that the governments interest in promoting the wellbeing of children is neither substantially nor rationally connected to DOMA or Proposition 8, because the overwhelming scientific evidence shows clearly that same-sex couples are equally capable of generating positive child outcomes.4
As explained by Respondent Edith Schlain Windsor and acknowledged by the district court in the Windsor case, DOMA in no way affects whether children will be raised by same-sex or opposite-sex parents. It does not encourage gay and lesbian individuals to enter into opposite-sex marriages or deter such individuals from having children within same-sex relationships. Additionally, DOMA in no way impacts heterosexual couples decisions regarding marriage: We agree that promotion of procreation can be an important government objective. But we do not see how DOMA is substantially related to it. Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012). See also Windsor v. United States, 833 F. Supp. 2d 394, 404 (S.D.N.Y. 2012), affd, 699 F.3d 169 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012) (DOMA has no direct impact on heterosexual couples at all; therefore, its ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married, is remote, at best.). Similarly, as the United States Court of Appeals for the Ninth Circuit noted in Perry, taking away the right to marry from same-sex couples has no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012), cert. granted, 133 S. Ct. 786 (U.S. 2012).
5 This Court has long relied on social science research to inform its decisions. For example, in Roper v. Simmons, the Court relied on social science research showing that juveniles have less control, or less experience with control, over their own environment and that [t]he personality traits of juveniles are more transitory, less fixed to support its conclusion that capital punishment for crimes committed while a minor is unconstitutional. 543 U.S 551, 569-70 (2005); see also Atkins v. Virginia, 536 U.S. 304, 318 (2002) (noting that [t]here is no evidence that [mentally retarded individuals] are more likely to engage in criminal conduct than others and holding, in part based on the social science evidence and germane expertise of amicus curiae, that executing mentally retarded individuals violates the Eighth Amendment); Price Waterhouse v. Hopkins, 490 U.S. 228, 255-56 (1989) (relying in part on the testimony of a social psychologist to conclude that the employer of a female worker engaged in sex stereotyping). BLAG and the Proposition 8 Proponents offer no facts to support the contention that Congress and the State of California possessed an important or rational basis for DOMA and Proposition 8. In this instance, when the social science evidence is exhaustively examinedwhich the ASA has donethe facts demonstrate that children fare just as well when raised by same-sex parents. Unsubstantiated fears regarding same-sex child rearing do not overcome these facts and do not justify upholding DOMA and Proposition 8.
6 ARGUMENT I. SCHOLARLY CONSENSUS IS CLEAR: CHILDREN OF SAME-SEX PARENTS FARE JUST AS WELL AS CHILDREN OF OPPOSITE-SEX PARENTS Contrary to the assertions of BLAG, the Proposition 8 Proponents, and their amici, the social science consensus is clear: children raised by same-sex parents fare just as well as children raised by opposite-sex parents. Numerous nationally representative, credible, and methodologically sound social science studies form the basis of this consensus. These studies reveal that children raised by same-sex parents fare just as well as children raised by opposite-sex couples across a wide spectrum of child-wellbeing measures: academic performance, cognitive development, social development, psychological health, early sexual activity, and substance abuse. Moreover, these studies are supported by and consistent with the evidence introduced into the records below and accepted by the district court in Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010). This evidence includes the research of Dr. Michael Lamb, an expert in child social and psychological development who has conducted extensive reviews of twenty-five years worth of research on the wellbeing of children of same-sex parents. See, e.g., Michael Lamb, Mothers, Fathers, Families, and Circumstances: Factors Affecting
7 Childrens Adjustment, 16 Applied Developmental Science 98, 104 (2012).5 Academic Performance and Cognitive Development Social science research confirms that the academic performance of children raised by same-sex parents is indistinguishable from that of children raised by opposite-sex parents. A leading study by Daniel Potter based on nationally representative, longitudinal data found no significant difference in academic achievement between children of same-sex parents and children of opposite-sex parents. See Daniel Potter, Same-Sex Parent Families and Childrens Academic Achievement, 74 Journal of Marriage & Family 556 (2012). Similarly, another leading 2009 study by sociologists Alicia Fedewa and Teresa Clark employing nationally representative data that examined the academic achievement of first-grade children reported
During the Perry v. Schwarzeneggar trial, the Proposition 8 Proponents eschew[ed] all but a rather limited factual presentation, and presented only one witness, David Blankenhornwho is not a social scientistto address the government interest in marriage. 704 F. Supp. 2d at 931. The district court concluded that this sole witness provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. Id. Since the trial, Blankenhorn has abandoned his former position regarding marriage rights for samesex couples. See David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012. As Blankenhorn recently explained, it is time to build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same. Mark Oppenheimer, In Shift, an Activist Enlists Same-Sex Couples in a Pro-Marriage Coalition, N.Y. Times, Jan. 29, 2013.
8 no significant differences in academic achievement between children raised by same-sex and opposite-sex parents. See Alicia L. Fedewa & Teresa P. Clark, Parent Practices and Home-School Partnerships: A Differential Effect for Children with Same-Sex Coupled Parents?, 5 Journal of GLBT Family Studies 312 (2009); see also Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010) (demonstrating that children of residentially stable same-sex parents are as likely to make normal progress through school as children from stable opposite-sex married parents); Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography (Nov. 2012), http://link.springer.com/ article/10.1007/s13524-012-0169-x/fulltext.html (confirming similar results of academic performance when comparing children of residentially stable samesex parents with children of stable opposite-sex married parents).6 The same pattern holds true among
The amici of BLAG and the Proposition 8 Proponents rely upon this study by Douglas Allen. Allen re-works data used by Rosenfeld, but ignores stability as a control factor, and as a result finds a difference in academic achievement. However, as Rosenfeld himself responds, and as demonstrated by the social science consensus, stability is the principal factor influencing child outcomes. By removing the control element for stability, Allen cannot discern childrens family history. Allens work thereby conceals that many children in same-sex parent families come from orphanages, foster families, or heterosexual parents who break up, influencing the results but not reflecting on the quality of same-sex parents. When stability is included as a control element, Allens study confirms that same-sex parents have no negative impact on
9 older children. For example, in another nationally representative study, social scientists found similar GPA levels among adolescents living with same-sex and opposite-sex parents. See Jennifer L. Wainright et al., Psychosocial Adjustment, School Outcomes, and Romantic Relationships of Adolescents with Same-Sex Parents, 75 Child Development 1886 (2004). Research also reveals similar cognitive development between children raised by same-sex parents and opposite-sex parents. See Justin A. Lavner et al., Can Gay and Lesbian Parents Promote Healthy Development in High-Risk Children Adopted from Foster Care?, 82 American Journal of Orthopsychiatry 465 (2012). In fact, another study of children with same-sex parents reveals that they score at least as welland sometimes better thanchildren of oppositesex parents on numerous indicators of educational achievement and involvement. See Joseph G. Kosciw & Elizabeth M. Diaz, Involved, Invisible, Ignored: The Experiences of Lesbian, Gay, Bisexual, and Transgender Parents and Their Children in Our Nations K-12 Schools, Gay, Lesbian and Straight Education Network (2008). Social Development The social development of children raised by samesex parents is equivalent to that of children raised by opposite-sex parents. Analysis of nationally
academic outcomes of children. See Michael J. Rosenfeld, Reply to Allen et al., Demography (Nov. 2012), http://link.springer.com/ article/10.1007%2Fs13524-012-0170-4.
10 representative data reveals no differences in social adjustment depending on whether children were raised by same-sex or opposite-sex parents. See Fedewa & Clark at 312. Nationally representative studies of adolescents find that the number, support, and quality of peer relationships and friendships are similar for teens raised by female same-sex couples and those raised by opposite-sex parents. See Jennifer L. Wainright & Charlotte J. Patterson, Peer Relations Among Adolescents with Female Same-Sex Parents, 44 Developmental Psychology 117 (2008); see also Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26 Developmental and Behavioral Pediatrics 224 (2005) (finding children of same-sex parents exhibited the same typical adjustments related to peer relations as children of opposite-sex parents and therefore could not be said to fare worse based on their parents sexuality). Mental Health Social science studies also confirm that children of same-sex parents are just as psychologically healthy as children of opposite-sex parents. According to a nationally representative study, adolescents raised by same-sex and opposite-sex parents report similar levels of self-esteem and depression. See Wainright et al. at 1886. Other reliable studies corroborate these results. See Loes van Gelderen et al., Quality of Life of Adolescents Raised from Birth by Lesbian Mothers: The US National Longitudinal Family Study, 33 Journal of Developmental & Behavioral Pediatrics 1, 1 (2012) (concluding that [a]dolescent offspring in planned lesbian families do not show differences in [quality of life] when compared with a matched group of
11 adolescents reared in heterosexual families). As Dr. Lamb outlined in his comprehensive literature review of the social science evidence, numerous studies of children and adolescents raised by same-sex parents conducted over the past 25 years by respected researchers and published in peer-reviewed academic journals conclude that they are as successful psychologically, emotionally, and socially as children and adolescents raised by heterosexual parents. Lamb at 104. Similarly, surveys reveal no greater levels of anxiety or Attention Deficit Disorder (A.D.D.) among teenagers raised by same-sex parents than among those raised by opposite-sex parents. See Nanette Gartrell & Henny W. Bos, US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17Year-Old Adolescents, 126 Pediatrics 28 (2010).7 This social science evidence confirms the evidence presented at the trial and accepted by the district court in Perry. For example, based in part on the testimony of Dr. Lamb that social science studies demonstrate very conclusively that children who are raised by gay and lesbian parents are just as likely to be welladjusted as children raised by heterosexual parents, the district court found as a matter of fact that:
See also Rachel H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Science 164 (2010); Scott Ryan, ParentChild Interaction Styles between Gay and Lesbian Parents and Their Adopted Children, 3 Journal of GLBT Family Studies 105 (2007); Stephen Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 Journal of GLBT Family Studies 43 (2005) (all reporting similar findings).
12 [t]he gender of a childs parent is not a factor in a childs adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. Perry v. Schwarzenegger, 704 F. Supp. 2d at 980. Early Sexual Activity The social science studies also demonstrate that teenagers raised by same-sex parents and those raised by opposite-sex parents engage in similar levels of teenage sexual activity. For instance, nationally representative studies show that similar proportions of teenagers raised by same-sex parents and by oppositesex parents have had sexual intercourse or a romantic relationship. See Charlotte J. Patterson & Jennifer L. Wainright, Adolescents with Same-Sex Parents: Findings from the National Longitudinal Study of Adolescent Health, in Adoption by Lesbians and Gay Men: A New Dimension in Family Diversity (David M. Brodzinsky & Adam Pertman eds., 2012). In fact, sexual behaviors reported by 17-year-olds raised by same-sex mothers indicated that the age at which they first engage in sexual intercourse was slightly older than those in a gender- and age-matched national sample of children raised by opposite-sex parents. See Nanette Gartrell et al., New Trends in Same-Sex Sexual Contact for American Adolescents, 41 Archives
13 of Sexual Behavior 5 (2012). Moreover, the odds of having a sexually transmitted disease, becoming pregnant, or impregnating someone were statistically similar. Id. And none of the children raised by samesex parents examined in the National Longitudinal Lesbian Family Study reported any physical or sexual abuse by a parent or caregiver. See Nanette Gartrell et al., Adolescents of the U.S. National Longitudinal Lesbian Family Study: Sexual Orientation, Sexual Behavior, and Sexual Risk Exposure, 40 Archives of Sexual Behavior 1199 (2011). Substance Abuse and Behavioral Problems Finally, social science studies confirm that children of same-sex parents are no more likely to abuse substances than children of opposite-sex parents. A nationally representative sample of adolescents living with female, same-sex parents reveals that the adolescents are similar to their counterparts raised by opposite-sex parents in terms of frequency of substance use (i.e., tobacco, alcohol, and marijuana), problems with substance use, and delinquent behavior. See Jennifer L. Wainright & Charlotte J. Patterson, Delinquency, Victimization, and Substance Use Among Adolescents with Female Same-Sex Parents, 20 Journal of Family Psychology 526 (2006). Furthermore, children of opposite-sex and same-sex parents report similar levels of problematic, rule-breaking, and inappropriately aggressive behaviors. See Gartrell & Bos. In sum, as the overwhelming body of social science research confirms, whether a child is raised by samesex or opposite-sex parents has no bearing on a childs
14 wellbeing.8 Instead, the consensus is that the key factors affecting child wellbeing are stable family environments and greater parental socioeconomic resources, neither of which is related to the sex or sexual orientation of a childs parents. See Rand D. Conger et al., Socioeconomic Status, Family Processes, and Individual Development, 72 Journal of Marriage & Family 685 (2010). As the district court in Perry concluded based on the testimony of Dr. Lamb and other social science evidence presented, [t]he factors that affect whether a child is well-adjusted are: (1) the quality of a childs relationship with his or her parents; (2) the quality of the relationship between a childs parents or significant adults in the childs life; and (3) the availability of economic and social resources. 704 F. Supp. 2d at 980. These factors indicate that in order to further enhance child outcomes and wellbeing, we should encourage stable and financially secure family unitsincluding same-sex parented familiesrather than exclude the hundreds of thousands of children living with same-sex couples from the stability and economic security that marriage provides.
Notwithstanding certain critics blanket dismissal of some of the studies underlying the social science research consensus, see, e.g., Brief for Social Science Professors as Amicus Curiae Supporting PetitionerHollingsworth, No. 12-144, and RespondentBLAG, No. 12-307 at 13-21 (U.S. Jan. 29, 2013), the ASAs review of the studies confirms that they are methodologically sound and conform to the highest standards of sociological research.
15 II. THE RESEARCH CLAIMED TO UNDERMINE THE CONSENSUS EITHER DOES NOT ADDRESS SAME-SEX PARENTS AND THEIR CHILDREN OR IS MISCHARACTERIZED The studies relied on by BLAG, the Proposition 8 Proponents, and their amici fail to support their claim that children fare better with opposite-sex parents than same-sex parents, because nearly all of the studies fail to examine same-sex parents or their children. One of the amici supporting BLAG and the Proposition 8 Proponents in the circuit courts conceded the importance of apples-to-apples comparisons and dismissed studies that rely on inappropriate comparisons (i.e., comparing children raised by samesex couples to children raised by divorced mothers). Brief for American College of Pediatricians as Amicus Curiae Supporting IntervenorDefendantAppellant at 4-5, Windsor v. United States, 699 F.3d. 169 (2d Cir. 2012). This critique of inappropriate comparisons is even truer when the studies do not address same-sex parents at all. Moreover, some of the findings in the studies are mischaracterized by the amici supporting BLAG and the Proposition 8 Proponents and, in fact, affirm that family stability and greater parental socioeconomic resources are the principal factors affecting child wellbeing. In an effort to undermine the social science consensus, several amici rely heavily on one study conducted by Mark Regnerus. See Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Survey, 41 Social Science Research 752 (2012) (Regnerus 2012a). Critically, for multiple
16 reasons and as Regnerus acknowledges, his study did not examine, and provides no conclusions regarding, the wellbeing of children who lived with and were raised by same-sex parents. A) THE REGNERUS STUDY DOES NOT SUPPORT CONCLUSIONS REGARDING THE IMPACT OF BEING RAISED BY SAME-SEX PARENTS The Regnerus studythe principal study relied on by the amici of BLAG and the Proposition 8 Proponentsdid not specifically examine children raised by same-sex parents, and provides no support for the conclusions that same-sex parents are inferior parents or that the children of same-sex parents experience worse outcomes. The Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents First, the Regnerus study does not specifically examine children born or adopted into same-sex parent families, but instead examines children who, from the time they were born until they were 18 or moved out, had a parent who at any time had a same-sex romantic relationship. Regnerus 2012a at 752. As Regnerus noted, the majority of the individuals characterized by him as children of lesbian mothers and gay fathers were the offspring of failed oppositesex unions whose parent subsequently had a same-sex relationship. Id. In other words, Regnerus did not study or analyze the children of two same-sex parents.
17 Second, when the Regnerus study compared the children of parents who at one point had a same-sex romantic relationship, most of whom had experienced a family dissolution or single motherhood, to children raised by two biological, married opposite-sex parents, the study stripped away all divorced, single, and stepparent families from the opposite-sex group, leaving only stable, married, opposite-sex families as the comparison. Id. at 757 (the comparison group consisted of individuals who [l]ived in intact biological famil[ies] (with mother and father) from 0 to 18, and parents are still married at present). Thus, it was hardly surprising that the opposite-sex group had better outcomes given that stability is a key predictor of positive child wellbeing. By so doing, the Regnerus study makes inappropriate apples-to-oranges comparisons. Third, Regneruss first published analysis of his research data failed to consider whether the children lived with, or were raised by, the parent who was, at some point, apparently involved in a romantic relationship with someone of the same sex and that same-sex partner. Id. at 756. Instead, Regnerus categorized children as raised by a parent in a samesex romantic relationship regardless of whether they were in fact raised by the parent and the parents same-sex romantic partner and regardless of the amount of time that they spent under the parents care.9 As a result, so long as an adult child believed
Although the data used by Regnerus distinguished between children who had lived with their parent while the parent was in a same-sex romantic relationship and children who had not,
18 that he or she had had a parent who had a relationship with someone of the same sex, then he or she was counted by Regnerus as having been raised by a parent in a same-sex relationship.10 Fourth, in contrast to every other study on same-sex parenting, Regnerus identified parents who had purportedly engaged in a same-sex romantic relationship based solely on the childs own retrospective report of the parents romantic relationships, made once the child was an adult. This unusual measurement strategy ignored the fact that the child may have limited and inaccurate recollections of the parents distant romantic past. Id. Finally, the study fails to account for the fact that the negative outcomes may have been caused by other childhood events or events later in the individuals
Regnerus 2012a at 757, Regnerus classified children in his study and defined them as being raised by Lesbian Mothers and Gay Fathers without regard to those differences. Id. at 756-57 (noting that 73 total children responded as having a father in a same-sex relationship and including all 73 in his analysis, notwithstanding that only 42% of the respondents reported living with the father while he was in a same-sex romantic relationship, and only 23% percent reported living with him and his partner for at least 4 months). Regnerus notes that he classified children as being raised by Lesbian Mothers and Gay Fathers regardless of any other household transition. Id. at 757. Indeed, the Regnerus study described itself as a study of young adults rather than children or adolescents, with particular attention paid to reaching ample numbers of respondents who were raised by parents that had a same-sex relationship. Id. at 755.
10
19 adult life, particularly given that the vast majority (thirty-seven of forty) of the outcomes measured were adult and not childhood outcomes.11 Factors other than same-sex parenting are likely to explain these negative outcomes in the Regnerus study. Regnerus himself concludes that I am thus not suggesting that growing up with a lesbian mother or gay father causes suboptimal outcomes because of the sexual orientation or sexual behavior of the parent. Id. at 766. In sum, by conflating (1) children raised by samesex parents with (2) individuals who reportedly had a parent who had a romantic relationship with someone of the same sex, and referring to such individuals as children of lesbian mothers or gay fathers, the Regnerus study obscures the fact that it did not specifically examine children raised by two same-sex parents. Accordingly, it cannot speak to the impact of same-sex parenting on child outcomes. As discussed above, amici in support of BLAG and the Proposition 8 Proponents have themselves rejected such inappropriate comparisons between stable and unstable family structures, see Brief for American College of Pediatricians at 4-5, as did the district court in Perry, see 704 F.Supp. 2d at 981 (studies that make apples-to-oranges comparisons are of no moment).
Regnerus himself recognizes that the survey data he relied uponthe New Family Structures Study (NFSS)is poised to address [questions] about the lives of young adults between the ages of 18 and 39, but not about children or adolescents. Regnerus 2012a at 755.
11
20 The Re-Stated Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents Regnerus acknowledged the merit of a series of scholarly critiques regarding underlying aspects of his research and subsequently published a second analysis of the data. Among others, a group of over one hundred social scientists signed an article faulting the Regnerus study for failing to take account of family structure and family instability. Gary J. Gates et al., Letter to the Editor and Advisory Editors of Social Science Research, 41 Social Science Research 1350 (2012). The article specifically criticized the Regnerus studys failure to distinguish between the impact of having a parent who has a continuous same-sex relationship from the impact of having same-sex parents who broke-up from the impact of living in a same sex stepfamily from the impact of living with a single parent who may have dated a same-sex partner. Id. Regnerus tried to remedy the fact that his initial published research did not analyze whether the children had actually lived with the parent who, according to the adult child, had at some point, been romantically involved with someone of the same sex. See Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41 Social Science Research 1367, 1369 (2012) (Regnerus 2012b). Nevertheless, Regneruss follow-up analysis does not resolve the problems inherent in his initial analysis and contains many of the same shortcomings. The follow-up analysis maintained the flawed and extremely broad definition of what constitutes lesbian
21 mothers and gay fathersa mother or father who ever had a romantic relationship with someone of the same-sex during the period from the birth of the child until the child turned eighteen (or left home to be on their own). Id. at 1368. Accordingly, Regneruss analysis continues to ignore stability as a factor in child outcomesa factor that explains many of the differences among its subjects. And Regnerus still fails to account for the duration of time spent with a mother who was romantically involved with a same-sex partner and that partner. See id. at 1372. Only two of the eighty-five children who at some point lived with a mother who was romantically involved with another woman reported that they did so for the entire duration of their childhood. Finally, Regneruss follow-up analysis is still not reflective of same-sex parenting because Regnerus could not remedy the fact that he recorded experiences that occurred either during the time the child lived with his or her mothers same-sex partner or during another childhood time period. If any conclusion can be reached from Regneruss study, it is that family stability is predictive of child wellbeing. As Regnerus himself notes, family structure (for instance whether the family has a single parent or two parents), matters significantly to child outcomes. Regnerus 2012a at 761. As the social science consensus described in Part I demonstrates, the evidence regarding children raised by same-sex parents overwhelmingly indicates that children raised by such families fare just as well as children raised by oppositesex parents, and that children raised by same-sex parents are likely to benefit from the enhanced stability the institution of marriage would provide to their parents and families. All told, the Regnerus
22 study, even as revised, does not undermine the consensus that children raised by same-sex parents fare just as well as those raised by opposite-sex parents. B) THE REMAINING STUDIES CITED BY BLAG, THE PROPOSITION 8 PROPONENTS, AND THEIR AMICI DO NOT ADDRESS SAME-SEX PARENTS AND THEREFORE DO NOT UNDERMINE THE CONSENSUS The other studies cited by BLAG, the Proposition 8 Proponents, and their amici in no way undermine the consensus of social science research that children of same-sex couples fare just as well as those of oppositesex couples. In continued apples-to-oranges fashion, they rely on studies analyzing, inter alia, stepparents, single parents, and adoptive parentsnone of which address same-sex parents or their childrenin order to make speculative statements about the wellbeing of children of same-sex parents. Such inappropriate, methodologically baseless comparisons provide no factual support or justification for DOMA or Proposition 8. Instead, the studies confirm that parental stability and higher parental socioeconomic resources are the key drivers of positive child outcomes. Studies Regarding the Impact of Stepparents, Divorced Parents, or Single parents BLAG, the Proposition 8 Proponents, and their amici rely on studies examining the impact of stepparents, divorced parents, and single parents on child wellbeing outcomes, and use these studies to
23 argue that two biological parents are necessary to positive child outcomes. See Brief for Matthew B. OBrien as Amicus Curiae Supporting PetitionerHollingsworth at 17, No. 12-144, and RespondentBLAG, No. 12-307 (U.S. Jan. 29, 2013); Brief for Social Science Professors as Amicus Curiae, Nos. 12-144, 12-307, at 5 (U.S. Jan. 29, 2013). These studies in no way examined same-sex parents or their impact on child wellbeing. See, e.g., Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent 38 (1994) (comparing disrupted families with intact families, but nowhere discussing same-sex parents ); Marilyn Coleman et al., Reinvestigating Remarriage: Another Decade of Progress, 62 Journal of Marriage & Family 1288 (2000) (comparing stepparents to nondivorced parents, but not addressing same-sex parents); Kristen Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, Child Trends Research Brief 1-2, 6 (2002), http://www. childtrends.org/files/marriagerb602.pdf (comparing the wellbeing of children raised by stepparents and single parents to that of children raised by stable, two parent families); Mark V. Flinn et al., Growth and Fluctuating Assymetry of Stepchildren, 20 Evolutionary Human Behavior 465 (1999) (analyzing the wellbeing of children raised by stepfathers, but not addressing same-sex parents); Nicholas H. Wolfinger, Understanding the Divorce Cycle: The Children of Divorce in Their Own Marriages (2005) (analyzing the impact of divorce, but not addressing same-sex parents). Accordingly, they cannot be relied upon as scientific evidence regarding the effects of same-sex parenting.
24 Aside from not specifically addressing same-sex parents, the studies regarding stepparents and divorce indicate that child outcomes are, on average, not as positive because of the disruption caused by divorce or the introduction of a new parent into the family, but do not indicate that the source of the negative outcomes is related to the fact that the stepparent is not biologically related to the child. See, e.g., Moore at 1 (Divorce is linked to academic and behavior problems among children, including depression, antisocial behavior, impulsive/hyperactive behavior, and school behavior problems. Mental health problems linked to marital disruption have also been identified among young adults.). Therefore, the argument that research regarding stepparents is relevant to same-sex parents because at least one of the same-sex parents is not the biological parent, and is therefore step is misplaced. In a planned, same-sex parent family, both parents have brought the child into the family and raised the child from infancy. Moreover, in many states, both parents in same-sex parent families are legal parents to the children. Accordingly, all of the studies cited by BLAG, the Proposition 8 Proponents, and their amici analyzing the effects of single parents and stepparents are mischaracterized by them. The research on children in divorced, single parent, and stepparent families simply says nothing about the wellbeing of children raised by same-sex parents. As the district court determined based on the evidence introduced at trial in the Perry case, [s]tudies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents
25 in stable, long-term relationships. 704 F. Supp. 2d at 981. In fact, the authors of one of the principal studies relied on by BLAGthe Child Trends studyhave publicly responded that their study focused on children being raised in families headed by single parents, stepparents, and married, opposite-sex parentsnot same-sex parents. See Moore at Introductory Disclaimer. The Child Trends authors expressly disclaimed BLAGs misuse of their study, explaining that no conclusions can be drawn from this research about the wellbeing of children raised by same-sex parents or adoptive parents. Id. See also Chris Johnson, Anti-Gay Briefs Mischaracterized Study, Washington Blade (Jan. 25, 2013), http://www.washingtonblade.com/ 2013/01/25/anti-gaylegal-briefs-mischaracterized-parenting-study. The Child Trends study concluded something entirely different than what was claimed by BLAG. The study concluded that when researchers have compared marriage to cohabitation, they have found that marriage is associated with better outcomes for children. Moore at 2. Extending this logic to the context of same-sex couples and their children, recognition of marriage rights of such couples could improve, not impair, the wellbeing of children being raised by currently unmarried same-sex parents. See also Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families 65 Journal of Marriage & Family 876 (2003) (noting that marriage provides enhanced socioeconomic resources to families, improving child wellbeing outcomes); Pamela J. Smock
26 & Wendy D. Manning, Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy, 26 Law & Policy 87, 94 (2004) (discussing the role of marriage in contributing to the stability of a family). Studies Purporting to Examine the Effect of Two Biological Parents The amici in support of DOMA and Proposition 8 cite studies purporting to show the superiority of biological parents over adoptive parents, see Brief for Social Science Professors at 14 n.6 (citing Brent Miller et al., Comparisons of Adopted and Non-Adopted Adolescents in a Large, Nationally Representative Sample, 71 Child Development 1458 (2000)), and a publication by an advocacy organization purporting to show problems for children conceived by donor sperm, see Brief for Coalition for the Protection of Marriage as Amicus Curiae Supporting PetitionerHollingsworth at 23, No. 12-144, and RespondentBLAG, No. 12-307 (U.S. Jan. 29, 2013) (citing Institute for American Values (Elizabeth Marquardt, Norval D. Glenn, & Karen Clark, co-investigators), My Daddys Name is Donor: A New Study of Young Adults Conceived Through Sperm Donation (2010)). As with the rest of their studies, these studies do not examine same-sex parents or their children. It is hard to see the relevance of these citations to the issue of marriage rights for same-sex couples given that both adoption and assisted reproduction are widely used by heterosexual couples, as reflected in the very sources cited in support of DOMA and Proposition 8.
27 In any case, there is no basis for the assertion that adoption or assisted reproduction leads to negative child outcomes. In fact, studies actually indicate that children raised in adoptive families since infancy or in families utilizing assisted reproduction techniques fare just as well as other children. See also Gartrell & Bos at 33-34 (showing that adolescents who have been raised since birth in planned lesbian families demonstrate healthy psychological adjustment and that they in fact demonstrated higher levels of social, school/academic, and total competence than gendermatched normative samples of American teenagers); Brent Miller et al., Comparisons of Adopted and NonAdopted Adolescents In A Large, Nationally Representative Sample, 71 Child Development 1458 (2000) (finding little difference between adoptees and non-adoptees who live in two-parents families, and finding, to the extent there was any difference, that the difference occurs in children who were adopted later in their childhood). As put succinctly by the district court in Perry, [t]he genetic [or biological] relationship between a parent and a child is not related to a childs adjustment outcomes. 704 F.Supp. 2d at 981.12
The amici of BLAG and Proposition 8 Proponents cite to the assertion that children have a right to their biological parents because they allegedly fare better with such parents. Margaret Somerville, Childrens Human Rights to Natural Biological Origins and Family Structure, 1 International Journal of Jurisprudence of the Family 35 (2010). However, when this same opinion was offered to the Iowa Supreme Court in its evaluation of marriage rights for same-sex couples, it was dismissed as being largely unsupported by reliable scientific studies. Varnum v. Brien, 763 N.W.2d 862, 899 (Iowa 2009).
12
28 Studies Regarding Gender Roles in Opposite-Sex Family The amici also rely on a number of studies that examine the parental roles of mothers and fathers within the context of opposite-sex parent families and claim that these studies demonstrate that childrens wellbeing depends on having both a male and female parent. See Brief for Coalition for Protection of Marriage at 33; Brief for Social Science Professors at 7.13 But these studies do not support this suggestion and reliance on them is misplaced for multiple reasons. First, like the other studies cited by BLAG, the Proposition 8 Proponents, and their amici, these studies do not examine the parenting and disciplinary dynamics of same-sex parents. Without any social science evidence to support their conclusion, the amici ask the Court to deduce that a child raised by two gay husbands would not receive the necessary neural development or improvement in emotional and communicative skills. No such conclusion is proper based on these or any studies. Second, BLAG, the Proposition 8 Proponents, and their amici ignore the fact that the research regarding different parenting
Citing C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health 37-59 (C.H. Zeanah Jr. ed., 2d ed. 2000); Eleanor Maccoby, The Two Sexes 266-67 (1998); Paul R. Amato & Fernando Rivera, Paternal Involvement and Childrens Behavior Problems, 61 Journal of Marriage & Family 375 (1999); Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in Adolescent Separation-Individuation, 62 New Directions for Child & Adolescent Development 41, 53 (1993).
13
29 roles and styles indicates that those roles are relative and nothing in the research indicates that same-sex couples are not able to provide such relative parenting dynamics. See David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood & Marriage Are Indispensable for the Good of Children & Society 147 (1996) (noting that among same-sex parents, one partner commonly fills the male-instrumental role while the other fills the female-expressive role in rearing their children). Third, the research also indicates that there is a range of parenting styles, that no couples parent identically, and that children do not need their parents to adopt particular parenting styles to be well adjusted. See Paul R. Amato & Frieda Fowler, Parenting Practices, Child Adjustment, and Family Diversity, 64 Journal of Marriage & Family 703, 714 (2002) (When parents spend time with children, help with homework, talk about problems, provide encouragement, and show affection, children do well.). Finally, arguments based on rigid gender roles should be rejected as this Court has declined to rely upon outdated misconceptions and loose-fitting characterizations regarding gender. See Craig v. Boren, 429 U.S. 190, 198-99 (1976); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ([W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group[.]). As the district court in Perry concluded after examining the social science evidence presented, including the testimony of Dr. Lamb, [c]hildren do not need to be raised by a male parent and a female parent to be welladjusted, and having both a male and a female parent
30 does not increase the likelihood that a child will be well-adjusted. 704 F. Supp. 2d at 981. Nor do the studies relied on by the amici that examine the role of absentee fathers, see, e.g., Popenoe at 146, establish that, within the context of same-sex parenting, fathers are necessary to the childs wellbeing. In fact, the research regarding the negative impact of absentee fathers, such as David Popenoes, has nothing to do with the unique contributions of fathers, but rather with the loss of a parental relationship. Id. at 139 (Much of what fathers contribute to child development, of course, is simply the result of being a second adult in the home. Other things being equal, two adults are far better than one in raising children. As the distinguished developmental psychologist Urie Bronfenbrenner has noted, the quality of interaction between principal caregiver and child depends heavily on the availability and involvement of another adult, a third party who assists, encourages, spells off, gives status to, and expresses admiration and affection for the person caring for and engaging in joint activity with the child. (internal quotations omitted)). In sum, the studies relied on by BLAG, the Proposition 8 Proponents, and their amici examine child outcomes within the context of opposite-sex relationships, and do not address the impact of samesex parents on child wellbeing. These studies do not undermine the social science consensus, supported by the most reliable studies available, that children raised by same-sex parents fare just as well as children raised
31 by opposite-sex parents across a broad spectrum of indicators.14 CONCLUSION The social science consensus is both conclusive and clear: children fare just as well when they are raised by same-sex parents as when they are raised by oppositesex parents. This consensus holds true across a wide range of child outcome indicators and is supported by numerous nationally representative studies. Accordingly, assuming that either DOMA or Proposition 8 has any effect on whether children are raised by opposite-sex or same-sex parents, there is no basis to prefer opposite-sex parents over same-sex parents and neither DOMA nor Proposition 8 is justified. The research supports the conclusion that extension of marriage rights to same-sex couples has the potential to improve child wellbeing insofar as the institution of marriage may provide social and legal support to families and enhances family stability, key drivers of positive child outcomes. The Regnerus study and other studies relied on by BLAG, the Proposition 8 Proponents, and their amici provide no basis for their arguments, because they do not directly examine the wellbeing of children raised by same-sex parents.
A handful of the studies cited by BLAG, the Proposition 8 Proponents, and their amici appear based on their titles to study same-sex parents and their children. They do not. For example, the Brief for Social Science Professors cites to a sociologist who critiques marriage rights for same-sex couples, but that critique is not grounded in scientific evidence, but is simply an opinion essay. Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Society 27 (2004).
14
32 These studies therefore do not undermine the consensus from the social science research and do not establish a common sense basis for DOMA or Proposition 8. The decisions of both the United States Courts of Appeals for the Second and Ninth Circuits should be affirmed. Respectfully submitted, CARMINE D. BOCCUZZI, JR. Counsel of Record for Amicus Curiae SCOTT THOMPSON MARK LIGHTNER CLEARY GOTTLIEB STEEN & HAMILTON LLP ONE LIBERTY PLAZA NEW YORK, NY 10006 (212) 225-2000 cboccuzzi@cgsh.com February 28, 2013

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Case 4:14-cv-00015-RLY-TAB Document 15 Filed 03/31/14 Page 1 of 2 PageID #: 53

CIVIL ACTION NO. 4:14-cv-15-RLY-TAB

PLAINTIFFS vs. MICHAEL RICHARD PENCE

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CIVIL ACTION NO. 4:14-cv-15-RLY-TAB

PLAINTIFFS vs. MICHAEL RICHARD PENCE

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To date, the State of Indiana has not identified a compelling interest

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Pace v. Alabama, 106 U.S. 583. 12

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Williams v. Illinois, 399 U.S. 235, 239 (1970). 13

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conflict in these two

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/s/ Laura E. Landenwich

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