2:13-cv-00922 #64

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

PAUL HARD, )
)
Plaintiff, )
)
v. ) CASE NO. 2:13-cv-922-WKW
)
ROBERT BENTLEY, et al., )
)
Defendants. )

DEFENDANTS MEMORANDUM OF LAW IN
SUPPORT OF THEIR MOTION FOR SUMMARY
JUDGMENT, AND IN OPPOSITION TO THE
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

LUTHER STRANGE
Attorney General

James W. Davis
Laura E. Howell
Assistant Attorneys General

STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
Montgomery, Alabama 36130-0152
(334) 242-7300
(334) 353-8440 (fax)
jimdavis@ago.state.al.us
lhowell@ago.state.al.us

Attorneys for Alabama Governor Robert Bentley and
Alabama Attorney General Luther Strange

October 1, 2014
Case 2:13-cv-00922-WKW-SRW Document 64 Filed 10/01/14 Page 1 of 50
i

TABLE OF CONTENTS
Table of Authorities ........................................................................................................................ ii
I. Introduction: The Nature and History of Marriage ..............................................................2
II. Binding Supreme Court precedent requires dismissal of Plaintiffs claims. .......................5
III. Heightened scrutiny does not apply to Plaintiffs claims. ...................................................8
A. Under binding Eleventh Circuit precedent, rational basis review
applies to Plaintiffs Equal Protection claim. ..........................................................8
B. Plaintiff seeks not the right to marry as it has been historically
understood but a new right to marry a person of the same gender.
The right he seeks therefore is not a fundamental right subject to
strict scrutiny. .........................................................................................................10
IV. Alabamas laws pass the rational basis test because they are rationally
related to legitimate State interests. ...................................................................................14
A. The standard of review is deferential to the State. .................................................16
B. Alabama has a legitimate interest in protecting the ties between
children and their biological parents and other kin. ...............................................17
1. Parental rights and kinship altruism. ..........................................................17
2. The importance of sexual complementarity in parenting. .........................20
3. The importance of preserving links with extended kin. .............................21
C. Alabamas marriage laws are rationally related to these legitimate
government interests. .............................................................................................22
D. Animus against gays and lesbians could not possibly be the source
of the definition of marriage embodied in Alabamas laws. ..................................26
E. The impact of social science. ......................................................................................29
V. The Full Faith and Credit Clause does not require recognition of same-
sex marriages performed in other states ...........................................................................30
VI. To Preserve the Integrity of the Courts, this Court should Decline the
Invitation to Resolve a Social Policy Debate. ....................................................................31
A. Ruling for plaintiff would require the Court to decide what is the
morally correct definition of marriage. ..................................................................32
B. To protect the integrity of courts, the definition of marriage should
be left to those institutions and authorities that make law. ....................................35
VII. Conclusion ..........................................................................................................................39
Certificate of Service .....................................................................................................................41
ii

TABLE OF AUTHORITIES
Cases
Baker v. Nelson,
409 U.S. 810 (1972) .................................................................................................... 6, 7, 32, 35
Baker v. Schaefer,
___ F.3d ___, 2014 WL 3702493 (4th Cir. July 28, 2014) ........................................................ 7
Baker v. Vermont,
744 A.2d 864 (Vt. 1999) ........................................................................................................... 10
Baskin v. Bogan,
___ F.3d ___, 2014 WL 4359059 (7th Cir. Sept. 4, 2014) ......................................................... 7
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. July 28, 2014) ................................................................................. 12, 39
Brenner v. Scott,
999 F. Supp. 2d 1278 (N.D. Fla. 2014) ...................................................................................... 7
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) .................................................................................................... 37
Doe v. Pryor,
344 F.3d 1282 (11th Cir. 2003) ................................................................................................ 28
Ex parte E.R.G.,
73 So. 3d 634 (Ala. 2011) ................................................................................................... 17, 18
Ex parte J.E.,
1 So. 3d 1002 (Ala. 2008) ......................................................................................................... 17
Ex parte ODaniel,
515 So. 2d 1250 (Ala. 1987) ..................................................................................................... 19
Ex parte Sullivan,
407 So. 2d 559 (Ala. 1981) ....................................................................................................... 18
F.C.C. v. Beach Communications, Inc.,
508 U.S. 307 (1993) .................................................................................................................. 16
Fl. Dep't of Children and Familes v. Adoption of X.X.G.,
45 So. 3d 79 (Fla. App. 2010) ..................................................................................................... 8
Furman v. Georgia,
408 U.S. 238 (1972) .................................................................................................................. 36
iii

Goodridge v. Dep't of Public Health,
798 N.E.2d 941 (Mass. 2003) ....................................................................................... 33, 36, 37
Haddock v. Haddock,
201 U.S. 562 (1906) .................................................................................................................. 35
Heller v. Doe,
509 U.S. 312 (1993) .................................................................................................................. 16
Hicks v. Miranda,
422 U.S. 332 (1975) ................................................................................................................ 6, 7
In re Marriage of J.B. and H.B.,
326 S.W.3d 654 (Tex. App. 2010) ............................................................................................ 37
In re: Marriage Cases,
183 P.3d 384 (Cal. 2008) .......................................................................................................... 37
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) .................................................................................. 7, 37
Johnson v. Robison,
415 U.S. 361 (1974) .................................................................................................................. 23
Kerrigan v. Comm'r of Pub. Health,
957 A.2d 407 (Conn. 2008) ...................................................................................................... 37
Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................................................. 9, 28
Lehr v. Robertson,
463 U.S. 248 (1983) .............................................................................................................. 8, 14
Lewis v. Harris,
908 A.2d 196 (N.J. 2006) ................................................................................................... 35, 37
Lofton v. Secretary of the Dep't of Children and Family Serv.,
358 F.3d 804 (11th Cir. 2004) ........................................................................................... passim
Loving v. Virginia,
388 U.S. 1 (1967) ...................................................................................................................... 12
Massachusetts v. U.S. Dep't of Health and Human Serv.,
682 F.3d 1 (1st Cir. 2012) ........................................................................................................... 7
Morrison v. Sadler,
821 N.E.2d 15 (Ind. App. 2005) ............................................................................................... 37
iv

Murphy v. Ramsey,
114 U.S. 15 (1885) .................................................................................................................... 31
Nevada v. Hall,
440 U.S. 410 (1979) .................................................................................................................. 31
Nordlinger v. Hahn,
505 U.S. 1 (1992) ........................................................................................................................ 8
Opinions of the Justices to the Senate,
802 N.E.2d 565 (Mass. 2004) ...................................................................................... 33, 34, 36
Osoinach v. Watkins,
180 So. 577 (1938) .................................................................................................................... 31
Palmore v. Sidoti,
466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) ............................................................. 21
Parham v. J.R., 422 U.S. 584 (1979) ............................................................................................ 17
Robicheaux v. Caldwell,
___ F.Supp. 2d ___, 2014 WL 4347099 (E.D. La. Sept. 3, 2014) .................. 2, 7, 13-14, 23, 36
Romer v. Evans,
517 U.S. 620 (1996) .................................................................................................... 8, 9, 16, 26
Schuette v. Coal. to Defend Affirmative Action,
134 S.Ct. 1623 (U.S. April 22, 2014) ......................................................................... 2, 7, 36, 38
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ........................................................................................... 7
Shapiro v. Thompson,
394 U.S. 618 (1969) .................................................................................................................. 10
Standhart v. Superior Court,
77 P.3d 451 (Ariz. App. 2003) .................................................................................................. 37
Stanley v. Illinois,
405 U.S. 645 (1972) ................................................................................................................. 21
Striplin v. Ware,
36 Ala. 87 (1860) ...................................................................................................................... 18
Troxel v. Granville,
530 U.S. 57 (2000) .................................................................................................................... 17
United States v. Windsor,
___ U.S. ___, 133 S.Ct. 2675 (2013) ................................................................................. passim
v

Vance v. Bradley,
440 U.S. 93 (1979) .................................................................................................................... 24
Washington v. Glucksberg,
521 U.S. 702 (1997) .................................................................................................................. 10
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ...................................................................................... 7

Statutes
United States Code
28 U.S.C. 1257 ........................................................................................................................ 6
28 U.S.C. 1738C .................................................................................................................... 30
Code of Alabama
12-15-101 .............................................................................................................................. 18
12-15-301 .............................................................................................................................. 21
12-15-314 .............................................................................................................................. 21
12-15-319 .............................................................................................................................. 18
13A-13-3 ............................................................................................................................... 11
22-8A-11 ............................................................................................................................... 21
26-2A-104 ............................................................................................................................. 21
26-10A-28 ............................................................................................................................. 21
26-17-204 .............................................................................................................................. 19
30-1-4 .................................................................................................................................... 11
30-2-52 .................................................................................................................................. 19
30-3-152 ................................................................................................................................ 19
30-3-160 ................................................................................................................................ 19
38-12-2 et seq. ....................................................................................................................... 21
vi

43-8-41 .................................................................................................................................. 19
12-15-319 .............................................................................................................................. 18
Florida Statutes
63.042(3) ................................................................................................................................... 8

Other Authorities
Adam J. MacLeod, The Search for Moral Neutrality in Same-Sex Marriage
Decisions, 23 BYU Journal of Public Law 1 (2008) ............................................................... 32
Ala. Atty. Gen. Op. 83-206 .......................................................................................................... 27
Don Browning and Elizabeth Marquardt, What About the Children? Liberal
Cautions on Same-Sex Marriage, in The Meaning of Marriage: Family, State,
Market, and Morals (Scepter 2006), edited by Robert P. George and Jean
Bethke Elshtain ........................................................................................................................ 18
Judith S. Crittenden and Charles P. Kindregan, Jr., Alabama Family Law 40:1 ...................... 17
Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage:
Rawls, Political Liberalism, and the Family, 1 British Journal of American
Legal Studies 411 (2012) ......................................................................................................... 32
Paula Roberts, Biology and Beyond: The Case for Passage of the New Uniform
Parentage Act, 35 Fam. L. Q. 41 (2001) ................................................................................. 17
Sherif Girgis, Robert P. George, and Ryan T. Anderson, What is Marriage, 34
Harv. J.L. & Pub. Poly 245, 246 (2011) ................................................................................... 3

Constitutional Provisions
U.S. Const. amend. XIV, 1 .......................................................................................................... 8
U.S. Const., art. 4, 1 .................................................................................................................... 30

vii

Internet Authorities
Casey Toner, Alabama to review sexual education policy after sodomy ban ruled
unconstitutional, July 17, 2014 (available at
http://www.al.com/news/index.ssf/2014/07/state_officials_to_review_sexu.htm
l, last visited Sep 30, 2014) ...................................................................................................... 28
Marriage and the Public Good: Ten Principles 9-19 (Princeton, NJ.: The
Witherspoon Institute 2008), available at
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved
=0CB4QFjAA&url=http%3A%2F%2Fprotectmarriage.com%2Fwp-
content%2Fuploads%2F2012%2F11%2FWI_Marriage.pdf&ei=TvMIVKrGC4
-UsQT_yYHYDA&usg=AFQjCNFx-hQ0-9LCYtkfXa9yFv_-
cKlpAg&bvm=bv.74649129,d.aWw (last visited Sept. 30, 2014) .......................................... 29
Politico, Text of Obamas Speech on Fatherhood (June 20, 2008) (available at
http://www.politico.com/news/stories/0608/11094.html) (last visited September
30, 2014) .................................................................................................................................. 25
The National Campaign to Prevent Teenage and Unwanted Pregnancy: Key
Information about Alabama (available at
http://thenationalcampaign.org/sites/default/files/resource-supporting-
download/al_summary_for_hill.pdf, last visited September 30, 2014). .................................. 21
Transcript: Robin Roberts ABC News Interview With President Obama (May 9,
2012) (available at http://abcnews.go.com/Politics/transcript-robin-roberts-abc-
news-interview-president-obama/story?id=16316043, last visited Sept. 30,
2014) ................................................................................................................................... 38-39
United Nations Convention on the Rights of the Child, Part 1 Article 7 (available
at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx) (last visited
Sept. 30, 2014) ......................................................................................................................... 17

1

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

PAUL HARD, )
)
Plaintiff, )
)
v. ) CASE NO. 2:13-cv-922-WKW
)
ROBERT BENTLEY, et al., )
)
Defendants. )

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT, AND IN OPPOSITION TO THE
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

Alabama Governor Robert Bentley
1
and Alabama Attorney General Luther Strange
respectfully submit this Memorandum of Law in support of their Motion for Summary Judgment
and in opposition to the Plaintiffs Motion for Summary Judgment. For the reasons stated below,
there is no genuine dispute of material fact and Defendants are entitled to a judgment as a matter
of law. Plaintiffs motion is therefore due to be denied and Defendants motion is due to be
granted.
___________________
This case is one of many across the country brought by members of same-sex couples
challenging marriage laws. It invokes sincere and deeply-held beliefs of people on all sides of the
issue. Reasonable people disagree on the wisdom of fundamentally altering an ancient institution
that is the building block of civilization.
This case, however, is not about the wisdom of changing the definition of marriage. It is
not about whether a State should, as a policy matter, extend benefits to other relationships in the

1
Governor Bentleys Motion to Dismiss, doc. 48, remains pending. Governor Bentley incorporates the arguments he
made in that motion regarding why he is not a proper defendant.
2

same way that it does to a married couple. It is instead about whether the Constitution requires
Alabama to do so. It is, fundamentally, about who should decide what marriage is.
Defendants argue that the people of each state should decide that question, not courts
who assume[] the mantle of a legislative body. Robicheaux v. Caldwell, ___ F. Supp. 2d ___,
___, 2014 WL 4347099 at *9 (E.D. La. Sept. 3, 2014). The people of this State have a
fundamental right that is held in common, the right to speak and debate and learn and then,
as a matter of political will, to act through a lawful electoral process. Schuette v. Coal. to
Defend Affirmative Action, 134 S.Ct. 1623, 1637 (U.S. April 22, 2014). And [t]hat process is
impeded, not advanced, by court decrees based on the proposition that the public cannot have the
requisite repose to discuss certain issues. It is demeaning to the democratic process to presume
that the voters are not capable of deciding an issue of this sensitivity on decent and rational
grounds. Id.
The role of courts is not to settle policy debates, but to interpret the law. And while some
of the social issues in this case are complex, the law is not. Binding Supreme Court and Eleventh
Circuit precedent provide that neither the Due Process Clause nor the Equal Protection Clause
requires Alabama to redefine marriage to include other relationships. There is no legal reason for
this court to redefine marriage in Alabama, and there are conclusive legal reasons for this court
to refrain from doing so.
I. Introduction: The Nature and History of Marriage
There are practically an infinite variety of human relationships. Some involve friendship,
some sexual intimacy, some care-giving, and some no emotional involvement at all.
Out of these myriad varieties, one particular form has been set aside in Alabama (and
world-wide up until the 21
st
Century) as marriage: a stable male-female sexual bond oriented
3

to family life, with corresponding duties on the mother and fathers part to each other and any
children they might have. (Declaration of Girgis [Ex. A. to Def. Mot. for Sum. J.] at 8). These
conjugal unions of one man and one woman have been regulated by government, with
incentives and disincentives, with a view toward childrens needs. Id. It is a union of life
between man and woman for the delights of love and the begetting of children, a distinct form
of friendship, specially embodied in physical union of coitus. Id. at 9.
Other forms of relationships have value too, without question. They each have their own
dignity. But the conjugal
2
union of man and woman has, in nearly every culture, been
considered to have distinctive social or personal value. Id. Alabama shares this view, and for
the entire time it has been a state, it has held to a definition of marriage that requires sexual
complementarity.
These views about marriage are not tied to any particular religion or region of the world.
Id. Nor did they arise because of a negative view toward gays or lesbians or homosexual acts,
because they arose in various times and cultures that spanned the spectrum of attitudes toward
homosexuality including ones favorable toward same-sex acts, and others lacking anything like
our concept of gay people as a class. Id. at 9-10.
Thus almost all cultures have understood marriage fundamentally as bringing man and
woman together in a sexual union oriented to family life, shaped by its demands (by, e.g., norms
of stability), and regulated in ways that increase the chances of children being reared by their
mother and father. Id. And why would government regulate marriage why would it even be

2
Conjugal has been used to describe the view of marriage to which Alabama holds and which by its nature is an
opposite-sex relationship. See Sherif Girgis, Robert P. George, and Ryan T. Anderson, What is Marriage, 34 Harv.
J.L. & Pub. Poly 245, 246 (2011). An opposing definition offered by proponents of same-sex marriage has been
called the Revisionist view. Id. Those terms are used in this brief to describe the competing views.
4

interested in marriage if marriage is not geared toward family life and is no more than two (or
more) adults who share an emotional bond?
A competing view of marriage, which can be called revisionist, has arisen which
focuses on those emotional bonds. Relationships other than conjugal marriage can involve sex
and shared emotional bonds, and proponents of same-sex marriage ask why their unions
should not likewise be considered a marriage. If marriage is about the emotional needs of adults,
then such proponents argue that sexual complementarity is not required at all and there is no
reason to exclude other relationships. See U.S. v. Windsor, ___ U.S. ____, 133 S.Ct. 2675, 2719
(2013) (Alito, J., dissenting). Indeed, one must ask why stability, or monogamy, or duality
should be required in marriage if this adult-centric view of marriage becomes the norm.
But as shown above, marriage has not been defined or understood historically as any two
adults who like or love each other and perhaps are intimate. To include same-sex unions in
marriage would require a new definition of the term. Many people favor doing so, and some
states in this country have adopted the new definition of marriage (voluntarily, as they have
every right to do, or by judicial decree). But the same-sex civil marriage debate is not ultimately
about whom to let marry, but about what marriage is and why it is socially regulated. (Girgis
Declaration at 8).
In this brief, Defendants argue that neither the revisionist view, nor the conjugal view, is
required by the Constitution. Because this case involves neither a fundamental right nor a suspect
class under Eleventh Circuit precedent, the claims are considered under rational basis review.
Alabamas marriage laws survive that standard because they promote and protect the link
between children and their biological parents (and other kin), a link that is in the best interests of
children. It is reasonable to think that redefining marriage will weaken that link, because the new
5

definition enshrines in the law a message that mothers and fathers, men and women, are fungible
when it comes to parenting, and that there is no rational reason to consider that a biological
parent is any better-suited than any other person, of whatever gender, to rear his or her children.
It is reasonable to think that this new definition could make it less likely that parents, fathers
especially, will enter into the commitment of marriage and remain in it. It is further reasonable to
believe that it is not in the best interests of children if fewer biological parents fulfill their natural
duties toward their children. And it is therefore rational for Alabama to retain the conjugal
definition of marriage.
II. Binding Supreme Court precedent requires dismissal of Plaintiffs claims.
Recently the United States Supreme Court ruled that a federal statute, 3 of the Defense
of Marriage Act (DOMA), was unconstitutional. United States v. Windsor, ___ U.S. ___, 133
S.Ct. 2675 (2013). DOMA provided that if a State defines marriage to include same-sex couples
(as New York did), federal law would not recognize that marriage, even though our federal
structure leaves regulation of marriage to the states. Congresss act was an intervention into
an area that has long been regarded as a virtually exclusive province of the States. 133 S.Ct. at
2691. DOMA reject[ed] the long-established precept that the incidents, benefits, and obligations
of marriage are uniform for all married couples within each State, though they may vary, subject
to constitutional guarantees, from one State to the next. Id. at 2692.
Windsor does not require states to redefine marriage. The majority went out of its way to
note that its opinion is confined to those lawful marriages at issue in states that have chosen to
recognize same-sex unions. As the Chief Justice wrote, [t]he Court does not have before it, and
the logic of its opinion does not decide, the distinct question whether the States, in the exercise
of their historic and essential authority to define the marital relation, [133 S.Ct.] at 2692, may
6

continue to utilize the traditional definition of marriage. Id. at ___, 133 S.Ct. at 2696 (Roberts,
C.J., dissenting) (quoting majority opinion). To the extent that Windsor dealt with the authority
of States to affirm marriage, the decision reaffirmed that authority.
There is, however, another Supreme Court decision that does resolve this case. In Baker
v. Nelson, 409 U.S. 810 (1972), the Supreme Court rejected the claim that same-sex couples have
a Fourteenth Amendment right to marriage or to the legal rights associated with marriage. The
Baker plaintiffs argued that [t]he right to marry is itself a fundamental interest, fully protected
by . . . the Fourteenth Amendment. See Baker v. Nelson, Jurisdictional Statement, No. 71-1027
p. 11 (Oct. Term 1972) (attached as Ex. A). They also argued that there are significant property
interests [that] flow from the legally ratified marital relationship, and that those property
interests are also protected by the due process clause. Id.
The U.S. Supreme Court unanimously rejected these arguments and ordered that the
appeal [be] dismissed for want of a substantial federal question. Baker, 409 U.S. at 810. This
was a common Supreme Court ruling when, prior to 1988, the Supreme Court was required to
hear all appeals from state supreme court rulings presenting federal constitutional questions. See
28 U.S.C. 1257.
The order of dismissal was brief, but it is doctrinally important. Summary dismissals for
want of a substantial federal questions are rulings on the merits, and lower courts are not free to
disregard th[ese] pronouncement[s]. Hicks v. Miranda, 422 U.S. 332, 343-45 (1975). [T]he
lower courts are bound by summary decisions by [the Supreme] Court until such time as the
Court informs them that they are not. Id. at 344-45 (internal quotation marks and alterations
omitted).
7

The Supreme Court has not informed District Courts that they are free to ignore Baker.
Baker is the last word from the Supreme Court on whether States are free to define marriage so
that it necessarily involves an opposite-sex couple, and the Court affirmed the States authority
to do just that.
Perhaps this is where other District Courts have gone astray. Other District Courts, post-
Windsor, have ignored the binding effect of Baker v. Nelson and assumed from Windsor that the
Supreme Court will soon overrule it.
3
Defendants believe that assumption is premature at best
(particularly considering Justice Kennedys post-Windsor opinion in Schuette, supra, affirming
the peoples ability to decide complex moral issues), but regardless, lower courts are not free to
ignore binding precedent because they think the Supreme Court might rule differently tomorrow.
Several District Courts have nonetheless determined that doctrinal developments
justify ignoring Supreme Court precedent. See, e.g., Baker v. Schaefer, ___ F.3d ___, 2014 WL
3702493 *6 (4th Cir. July 28, 2014) (listing cases). Yet in Hicks, the Supreme Court did not say
that lower courts are free to decide for themselves if the Supreme Court would view the case
differently today. 422 U.S. at 344-45. Other judges (pre-Windsor) have followed the proper
course and adhered to binding precedent. See Massachusetts v. U.S. Dept of Health and Human
Services, 682 F.3d 1, 8 (1st Cir. 2012); Sevcik v. Sandoval, 911 F.Supp.2d 996, 1003 (D. Nev.
2012); Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1087 (D. Haw. 2012); Wilson v. Ake, 354
F.Supp.2d 1298, 1304095 (M.D. Fla. 2005).
This Court is no more free to ignore Baker v. Nelson than it is Marbury v. Madison, or
Brown v. Bd. of Ed., or any other Supreme Court decision. That should end this case.

3
Plaintiffs submitted a list of post-Windsor same-sex marriage cases in docs. 42 and 45 After those filings,
decisions were issued against the states in Baskin v. Bogan, ___ F.3d ___, 2014 WL 4359059 (7
th
Cir. Sept. 4,
2014), and Brenner v. Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2014). Also, a federal judge upheld Louisianas
marriage laws in Robicheaux v. Caldwell, ___ F.Supp. 2d ___, 2014 WL 4347099 (E.D. La. Sept. 3, 2014).
8

III. Heightened scrutiny does not apply to Plaintiffs claims.
Plaintiff asks this Court to apply heightened scrutiny to his claim. He argues that
heightened scrutiny applies to his equal protection claim because people identifying as
homosexual are a suspect class, and to his due process claim because he is seeking
enforcement of a fundamental right. He is incorrect on both counts.
A. Under binding Eleventh Circuit precedent, rational basis review applies to
Plaintiffs Equal Protection claim.

The standard of review that applies to Plaintiffs Equal Protection claim was settled in
Lofton v. Secretary of the Dept of Children and Family Serv., 358 F.3d 804 (11th Cir. 2004).
There the plaintiffs challenged a Florida law that provided: No person eligible to adopt under
this statute may adopt if that person is a homosexual. Fla. Stat. 63.042(3).
4

The Court first summarized Equal Protection jurisprudence as follows:
The Equal Protection Clause of the Fourteenth Amendment proclaims that [n]o
State shall ... deny to any person within its jurisdiction the equal protection of
laws. U.S. Const. amend. XIV, 1. The central mandate of the equal protection
guarantee is that [t]he sovereign may not draw distinctions between individuals
based solely on differences that are irrelevant to a legitimate governmental
objective. Lehr v. Robertson, 463 U.S. 248, 265, 103 S.Ct. 2985, 2995, 77
L.Ed.2d 614 (1983). Equal protection, however, does not forbid legislative
classifications. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120
L.Ed.2d 1 (1992). It simply keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike. Id.

358 F.3d at 817-818. The Court then noted that [u]nless the challenged classification burdens a
fundamental right or targets a suspect class, the Equal Protection Clause requires only that the
classification be rationally related to a legitimate state interest. Id. at 818, citing Romer v. Evans,
517 U.S. 620, 631 (1996).

4
In 2010, a Florida state court ruled that the statute violated the Florida Constitution. Fl. Dept of Children and
Familes v. Adoption of X.X.G., 45 So. 3d 79 (Fla. App. 2010).
9

The Lofton court had already held that no fundamental right was at stake in that case (and
as discussed below, none is at stake in this case either). Noting that all of our sister circuits that
have considered the question have declined to treat homosexuals as a suspect class, 358 F.3d at
818, the Lofton court held the same: Because the present case involves neither a fundamental
right nor a suspect class, we review the Florida statute under the rational-basis standard. Id.
Plaintiff argues that this Court should disregard Lofton on the basis of Windsor and apply
heightened scrutiny to his claim. (Doc. 59 at 21) (Plaintiff urges this Court to recognize that
Windsor completely undermined to the point of abrogation Lofton and similar cases.). First of
all, Defendants do not agree that Windsor undermines the Lofton courts use of rational basis
review. Windsor did not apply heightened scrutiny, and indeed did not consider the
governments interests at all. See also, e.g., Romer, 517 U.S. 620, and Lawrence v. Texas, 539
U.S. 558 (2003) (applying rational basis to sexual orientation classifications).
Secondly, Defendants do not agree that Alabamas marriage laws draw a line with
heterosexual relationships on one side and homosexual relationships on the other. While same-
sex unions are expressly mentioned in Alabamas recent codifications of its longstanding laws, it
is not only intimate same-sex unions that are excluded from marriage. So are many, many other
relationship structures, including a wide range of emotionally fulfilling forms of companionship.
None of these other relationships are marriages as that term is used in Alabama law, even though
they each have their own value and dignity. In this critical respect, Alabama has not singled out
same-sex relationships and said no; it has singled out conjugal marriages from all other human
relationships and said yes.
And thirdly, and with all respect, this Court is simply not free to ignore Lofton. Only the
Eleventh Circuit or the Supreme Court can overrule an Eleventh Circuit case. This issue has been
10

resolved, and in this Circuit classifications based on sexual orientation are subject to rational
basis review.
5

B. Plaintiff seeks not the right to marry as it has been historically understood
but a new right to marry a person of the same gender. The right he seeks
therefore is not a fundamental right subject to strict scrutiny.

Under the Due Process clause, a law may be subject to heightened scrutiny if it impairs a
fundamental right. E.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969). Laws impairing
rights that are not fundamental are subject to rational basis review. The right Plaintiff seeks,
when carefully described, is not fundamental, and rational basis therefore applies.
A right is fundamental if it is objectively, deeply rooted in this Nations history and
tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal
citations and quotation marks omitted). The Supreme Court has always been reluctant to expand
the concept of substantive due process because guideposts for responsible decision-making in
this unchartered area are scarce and open-ended. Id. (internal quotation marks and citation
omitted). Importantly, the plaintiff in a Due Process case must provide a "careful description" of
the asserted right. Id. at 721.
Plaintiff argues that he seeks only the right to marry, and that the right to marry is a
fundamental right. Therefore, he argues, Alabamas laws are subject to strict scrutiny. What he
really seeks, though, is a new right to marital recognition of a same-sex relationship, or simply of
the relationship in which one finds deepest emotional fulfillment, neither of which is deeply
rooted in this Nations history and tradition.

5
Some plaintiffs in similar cases have argued that restrictions against same-sex marriage should be judged by
intermediate scrutiny as a form of gender discrimination. Such an argument would fail. [M]arriage laws are facially
neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women
equally from marrying a person of the same sex. Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999).
11

There have always been limits on whom a person may marry. There are restrictions in
Alabama against marrying a minor, Ala. Code 30-1-4, or close kin, Ala. Code 13A-13-3. The
law does not permit a person to marry more than one spouse no matter how critical he may feel
that it is to his personal identity, priorities, or moral or religious commitments; or how sincere his
love for multiple partners.
Nor does the right to marry a person of the same gender have a deep tradition. As the
Supreme Court acknowledged, [i]t seems fair to conclude that, until recent years, many citizens
had not even considered the possibility that two persons of the same sex might aspire to occupy
the same status and dignity as that of a man and woman in lawful marriage. For marriage
between a man and a woman no doubt had been thought of by most people as essential to the
very definition of that term and to its role and function throughout the history of civilization.
Windsor, 133 S.Ct. at 2689.
Indeed. In Alabama, marriage was not expressly defined to require two members of the
opposite sex for most of its history because no one ever thought it necessary to do so. Not until
the 21
st
Century were same-sex relationships anywhere publicly recognized as marriages. Some
may applaud subsequent policy changes in those jurisdictions, and others may be wary of their
still unknown social effects, but none can honestly say that same-sex marriage is deeply rooted
in our history. See Windsor, 133 S.Ct. at 2715 (Alito, J., dissenting) (It is beyond dispute that
the right to same-sex marriage is not deeply rooted in this Nations history and tradition. In this
country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court
held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution.
Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country
allowed same-sex couples to marry until the Netherlands did so in 2000.).
12

Cases that have discussed the right to marry have not done so in genderless terms, but
always in the context of a man and a woman. Loving v. Virginia, for instance, struck down laws
that prohibited bi-racial marriages involving a white party. 388 U.S. 1 (1967). It was a man and a
woman, opposite-sex adults, who desired to marry in that case; not even in dicta did the Loving
court suggest that the right it considered applied outside the context of opposite-sex couples. In
fact, the court described marriage as fundamental to our very existence and survival, id. at 12,
which would be an odd thing to say unless the court was affirming its gendered nature and
procreative biological reality. Virginias law was unconstitutional because it added to the ancient
predicates of marriage a novel and arbitrary requirement that was irrelevant to the nature and
purposes of marriage, to uphold a regime of white supremacy, as the Court itself affirmed. By
contrast, the law challenged here codifies a fundamental element (sexual differentiation) of an
ancient institution.
Several recent courts have nonetheless described the right at issue in cases like this one as
the traditional right to marry. That is simply error and cannot be reconciled with precedent or
history:
This analysis is fundamentally flawed because it fails to take into account that the
"marriage" that has long been recognized by the Supreme Court as a fundamental
right is distinct from the newly purposed relationship of a "same-sex marriage."
And this failure is even more pronounced by the majority's acknowledgment that
same-sex marriage is a new notion that has not been recognized for "most of our
country's history." Moreover, the majority fails to explain how this new notion
became incorporated into the traditional definition of marriage except by
linguistic manipulation.

Bostic v. Schaefer, 760 F.3d 352, 386 (4
th
Cir. 2014) (Niemeyer, J., dissenting) (citations
omitted).
To demonstrate the newness of the right Plaintiff seeks, consider the next cases that
might arise if his right is recognized. When siblings sue claiming that Alabamas laws against
13

incest violate their fundamental right to marry the person of their choice, what defense will
Alabama have, especially against infertile, elderly, or same-sex siblings? And when a trio come
to the court and say their love deserves the same dignity as that of the old-fashioned twosome
that they should not be stigmatized for their self-identity or sexual desireswould the State have
any response to their claimed fundamental right to marriageunderstood as recognition of the
bond in which they find deepest personal fulfillment? If marriage is about the intimacy of adults,
on what grounds can it be limited to two partners?
6

In fact, why would re-defined marriage have to involve sex at all, or be restricted to
partners that the law otherwise allows to engage in a sexual relationship (i.e., non-relatives of
appropriate age)? Any pair (or larger ensemble) committed to living together and caring for each
other could argue that their affection deserves the same benefits and dignity as married couples.
None of these relationships can claim a right to marry under the current definition, but if
Plaintiffs new right (with no discernable limits) is recognized, they very well may.
These are not questions that can be swept aside. As Judge Feldman wrote when affirming
Louisianas marriage laws,
When a federal court is obliged to confront a constitutional struggle over what is
marriage, a singularly pivotal issue, the consequence of outcomes, intended or
otherwise, seems an equally compelling part of the equation. It seems unjust to
ignore. And so, inconvenient questions persist. For example, must the states
permit or recognize a marriage between an aunt and niece? Aunt and nephew?
Brother/brother? Father and child? May minors marry? Must marriage be limited
to only two people? What about a transgender spouse? Is such a union same-
gender or male-female? All such unions would undeniably be equally committed
to love and caring for one another, just like the plaintiffs.

This Court is powerless to be indifferent to the unknown and possibly imprudent
consequences of such a decision.

6
See Lofton, 358 F.3d at 815 ([W]e decline appellants invitation to recognize a new fundamental right to family
integrity for groups of individuals who have formed deeply loving and interdependent relationships. Under
appellants theory, any collection of individuals living together and enjoying strong emotional bonds could claim a
right to legal recognition of their family unit.)
14

Robicheaux, ___ F.Supp. 2d at ___, 2014 WL 4347099 at *10.
No, Plaintiff does not ask for recognition of a marriage as that institution has, for good
reason, been historically defined. He seeks a new right. Some countries and states have chosen
democratically to extend that right, and some have been judicially forced to do so, but extending
that new right undeniably requires a fundamental change in the definition of marriage. Because
Plaintiff seeks a new right, his Due Process claim (like the Equal Protection claim) is governed
by the rational basis test.
7
As shown below, Alabamas law passes that test.
IV. Alabamas laws pass the rational basis test because they are rationally related to
legitimate State interests.

Because Alabamas marriage laws are judged under the rational basis test, they survive
Constitutional scrutiny if they are rationally related to any legitimate government interest.
Alabama asserts two such interests: Preserving the link between children and their biological
parents, and promoting (and reaping the benefits of) kinship altruism.
8

What should be an uncontroversial statement has become so: Everything else being
equal, the best situation for children is to be raised by their biological mother and father in a
stable, loving marriage. The ideal is not always possible, whether through misfortune or the
decisions of adults, but when it is possible, no one is in a better position to rear a child than his or
her biological parents. See Lehr v. Robertson, 463 U.S. 248, 262 (1983) (A childs biological
connection to a man offers [that] natural father an opportunity that no other male possesses to

7
While heightened scrutiny does not apply to Plaintiffs claims, it is Defendants position, and they so assert, that
Alabamas marriage laws would survive any level of scrutiny. The State interests discussed below in Section IV are
not only legitimate State interests, but compelling ones, and Alabamas laws are sufficiently closely drawn to
survive heightened scrutiny.
8
Plaintiffs misinterpret Defendants discovery responses and suggest that the State is relying on tradition as a
State interest. We are not. Tradition is important in some aspects of this case the lack of tradition of same-sex
marriage demonstrates that no fundamental right is at stake, and the Court should be mindful of the consequences
of rewriting millennia of human history but the State does not rely on weve always done it that way as a State
interest.
15

develop a relationship with his offspring.). This isnt at all to say that adoptive parents do not
love their adopted children. Adoption provides many children a home when they otherwise
would have none, and Defendants believe that mothers and fathers who are willing to open their
homes to such children should be lauded and supported. But when the biological parent is
available, willing, and fit, he or she has a natural affinity for his child that the law would be
foolish to disregard.
Plaintiffs case questions that premise. It must. If the premise is plausible, then there is a
rational link between Alabamas marriage laws and a legitimate state interest. For Plaintiff to
prevail, he must therefore argue that it is irrational to believe there is any advantage whatsoever
to a child being raised by his or her biological parent, and that it would make no difference to the
child at all if a biological parent were replaced with any other person, male or female. Thus,
because of the constraints of his claim, Plaintiff is not even free to concede that it is legitimate
for Alabama to want biological fathers and mothers to parent their children, and for extended
families to be good to one another. Doc. 59 at 20 (Even assuming it is legitimate ).
To be clear, if the law endorses Plaintiffs view by redefining marriage, Defendants do
not claim that it would cause an immediate rash of divorces by heterosexual couples. But it is
reasonable for the people of Alabama to suppose that, over time, the law will send a message that
it just isnt that important for fathers to stick around, or for parents to stay together or to commit
before possibly having children, because no rational person would believe that having both a
man and woman (or biological connections) in the home would likely make any long-term
difference for kids (and in fact, the message will be that only a bigot would believe such outdated
notions). That message would be logically entailed in the redefinition of marriage that Plaintiff
proposes; redefinition by a court, as opposed to a legislative compromise, must as a matter of law
16

rest on the irrationality of distinguishing maternal and paternal influences. A ruling in Plaintiffs
favor would proclaim that the legal incidents, presumptions, and duties supporting and
incentivizing the separate offices of biological fatherhood and motherhood are arbitrary, utterly
groundless, perhaps even bigoted. Unlike a legislature, which can reach accommodation on
controversial questions, a court is bound to follow its own logic, and the logic that Plaintiff
invites this court to adopt is that non-biological fathers are fungible for biological mothers, and
non-biological mothers are fungible for biological fathers. As that message is internalized by
society, it may very well affect peoples understanding and expectations of marriage. Only time
will reveal exactly what the consequences may be, but it is reasonable for Alabama to be
concerned.
A. The standard of review under the rational basis test is deferential to the
State.
Rational basis is, of course, a deferential standard, and Plaintiff has the burden of
disproving all conceivable bases of the challenged law:
Rational-basis review, a paradigm of judicial restraint, does not provide a
license for courts to judge the wisdom, fairness, or logic of legislative choices.
F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313-14 (1993) (citation
omitted). The question is simply whether the challenged legislation is rationally
related to a legitimate state interest. Heller v. Doe, 509 U.S. 312, 320 (1993).
Under this deferential standard, a legislative classification is accorded a strong
presumption of validity, id. at 319, 113 S.Ct. at 2642, and must be upheld
against equal protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification, id. at 320, 113
S.Ct. at 2642 (citation omitted). This holds true even if the law seems unwise or
works to the disadvantage of a particular group, or if the rationale for it seems
tenuous. Romer, 517 U.S. at 632, 116 S.Ct. at 1627. Moreover, a state has no
obligation to produce evidence to sustain the rationality of a statutory
classification. Heller, 509 U.S. at 320, 113 S.Ct. at 2643. Rather, the burden is
on the one attacking the legislative arrangement to negative every conceivable
basis which might support it, whether or not the basis has a foundation in the
record. Id. at 320-21, 113 S.Ct. at 2643 (citation omitted).

Lofton, 358 F.3d at 818. Plaintiff has not met that burden.
17

B. Alabama has a legitimate interest in protecting the ties between children and
their biological parents and other kin.

The child shall have the right from birth to a name, the
right to acquire a nationality and, as far as possible, the
right to know and be cared for by his or her parents."
9

1. Parental rights and kinship altruism.
Recognized as the most fundamental right, all children are entitled to know their
parents. Children who know their genetic mother and father may benefit from this knowledge,
both emotionally and financially. Judith S. Crittenden and Charles P. Kindregan, Jr., Alabama
Family Law 40:1 (citing Ex parte Martin, 565 So. 2d 1 (1989) and Paula Roberts, Biology and
Beyond: The Case for Passage of the New Uniform Parentage Act, 35 Fam. L. Q. 41 (2001).
This right of children to know their parents is also expressed from the other end of the
relationship: The right to parent ones child is a fundamental right. Ex parte J.E., 1 So. 3d
1002, 1006 (Ala. 2008). Although expressed at times as the right of a biological parent, this right
in fact is not premised on the rights of adults, but upon what is in the best interest of children. Ex
parte E.R.G., 73 So. 3d 634, 644 (Ala. 2011). For there is a presumption that fit parents act in
the best interests of their children. Troxel v. Granville, 530 U.S. 57, 68 (2000). Historically the
law has recognized that natural bonds of affection lead parents to act in the best interests of
their children. Parham v. J.R., 442 U.S. 584, 602 (1979). Stated another way, the law presumes
that custody of children belongs to biological parents
not so much upon the ground of natural right in the latter, as because the interests
of the children, and the good of the public, will, as a general rule, be thereby
promoted. It is a fair presumption, that so long as children are under the control of
their parents, they will be treated with affections and their education and morals
will be duly cared for.

9
United Nations Convention on the Rights of the Child, Part 1 Article 7 (available at
http://www.ohchr.org/en/professionalinterest/pages/crc.aspx) (last visited Sept. 30, 2014) (emphasis added).
18

Striplin v. Ware, 36 Ala. 87, 89 (1860), quoted with approval in Ex parte Sullivan, 407 So. 2d
559, 563 (Ala. 1981). And [b]ecause parents are presumed to act in the best interests of their
children, the law also presumes parental care, custody, and control to be superior to that of
third persons under ordinary circumstances. Ex parte E.R.G., 73 So. 3d at 644.
This makes perfect sense. An adult has a natural link with a child he or she gave life to.
Evolutionary psychologists call it kin altruism, a term which refers to the care that natural
parents are inclined to give to their children because they have labored to give them birth and
have come to recognize them as a part of themselves that should be preserved and extended.
10

We are willing to do things for kin, especially our children, that we are willing to do for no one
else, and that benefits the people in our care and society at large. To sever the bonds of kinship is
to separate those in need of support from those with the strongest motivations to support them.
Alabama has, throughout its laws, sought to preserve and strengthen the bond between
parent and child. For example, parental rights may be terminated by the state only upon a
finding, from clear and convincing evidence, that the parents of a child are unable or unwilling
to discharge their responsibilities to and for the child, or that the conduct or condition of the
parents renders them unable to properly care for the child and that the conduct or condition is
unlikely to change in the foreseeable future. Ala. Code 12-15-319. If the child is delinquent, a
primary goal of the Juvenile Justice Act is to preserve parental bonds, to remove the child from
the custody of his or her parent or parents only when it is judicially determined to be in his or her
best interests, and to reunite a child with his or parent or parents as quickly and safely as
possible. Ala. Code 12-15-101(b)(2), (3).

10
Don Browning and Elizabeth Marquardt, What About the Children? Liberal Cautions on Same-Sex Marriage, in
The Meaning of Marriage: Family, State, Market, and Morals 36 (Scepter 2006), edited by Robert P. George and
Jean Bethke Elshtain (excerpt attached as Ex. B).
19

In matters of custody after divorce, Alabama has expressed a general philosophy that
children need both parents, even after a divorce. Ala. Code 30-3-160. Joint custody is
presumed to be in the best interest of the child after divorce. Ala. Code 30-3-152. Before a
child may be placed for adoption, the mother and presumed biological father must give consent.
Ala. Code 26-10A-7(3). The law prioritizes spouses and children in intestate distribution of
property. Ala. Code 43-8-41. These and other legal presumptions, including presumptions of
paternity, Ala. Code 26-17-204, are relatively unobtrusive, low-cost ways for the state to
promote the bonds between children and their parents and other kin, with an emphasis on
biological ties. (Girgis Declaration at 11). Alabama law also recognizes stability in parenting
and seeks to promote it: Alabama statutes disfavor misconduct in marriage by permitting a judge
granting divorce to consider infidelity and other misconduct when dividing assets. Ala. Code
30-2-52; Ex parte ODaniel, 515 So. 2d 1250, 1253 (Ala. 1987).
Such laws are based on the reasonable assumption that biological parents are usually best
suited to shepherd a child into adulthood. What is true in most cases may not be true in all cases,
of course. Sometimes biological parents drop the ball. Some are neglectful or abusive, some
make horrible decisions, and some are unable through death or disability to care for their
children. But that does not disprove the States case. It remains reasonable for the law and the
people of Alabama to assume that, all else being equal, it is better to preserve and encourage
links between children and their biological parents, because in most cases the biological parents
are the ones who will best care for the child.
20

2. The importance of sexual complementarity in parenting.
Moreover, preserving the ties between children and their biological parents tends to
promote the benefits of sexual complementarity in parenting. In Lofton, the Eleventh Circuit
credited Floridas argument that
children benefit from the presence of both a father and mother in the home. Given
that appellants have offered no competent evidence to the contrary, we find this
premise to be one of those unprovable assumptions that nevertheless can
provide a legitimate basis for legislative action. Paris Adult Theatre I v. Slaton,
413 U.S. 49, 62-63, 93 S.Ct. 2628, 2638, 37 L.Ed.2d 446 (1973). Although social
theorists from Plato to Simone de Beauvoir have proposed alternative child-
rearing arrangements, none has proven as enduring as the marital family structure,
nor has the accumulated wisdom of several millennia of human experience
discovered a superior model. See, e.g., Plato, The Republic, Bk. V, 459d-461e;
Simone de Beauvoir, The Second Sex (H.M. Parshley trans., Vintage Books
1989) (1949). Against this sum of experience, it is rational for Florida to
conclude that it is in the best interests of adoptive children, many of whom come
from troubled and unstable backgrounds, to be placed in a home anchored by both
a father and a mother.

Lofton, 358 F.3d at 819-820. Lofton thus holds that is reasonable to believe that a child will do
better, all else being equal, with both a Mom and a Dad; preserving the links between biological
children and parents helps to ensure connections with both.
With connections to both a mother and father in the home, a child of either gender has a
parent of the same gender offering daily care and guidance. It is reasonable for the law to assume
that this will be an advantage to a childs sexual development. It is reasonable to believe that
laws that encourage mothers and fathers to marry will increase the likelihood that a child will
know both his mother and father. And it is reasonable for the people of Alabama to be cautious
about embracing a definitional change that declares men and women to be fungible, and neither
to be necessary or even advantageous, when it comes to bringing up children.
21

3. The importance of preserving links with extended kin.
The bond between parent and child is not the only important biological bond, of course.
Kinship altruism extends to siblings, aunts, uncles, grandparents, cousins, etc. In a biological
family a child is surrounded by a support group of people who share DNA. Anyone with a family
knows that shared DNA is no guarantee that a person will be a good caregiver, but just as a
parent has a natural connection with a child he or she creates, so a grandparent or a sibling tends
to feel more altruistic with biological family members. Considering Alabamas high teen
pregnancy rate,
11
it is reasonable to assume that many children in Alabama are being reared by
grandmothers and other extended family who are more likely than strangers to care for the child.
Alabama has an interest in promoting the biological family and preserving these ties among
extended kin to reap the societal benefits of an extended family care network.
These principles are found throughout Alabama law. For example, when a guardian is
required for a child, the law favors a close kin over a stranger. Ala. Code 12-15-301(6), 12-15-
314(a)(3)c. Family ties of varying degrees of closeness are recognized in statutes governing who
may serve as a medical surrogate, Ala. Code 22-8A-11; who may serve as guardian of an
incapacitated person, Ala. Code 26-2A-104; who may adopt on a streamlined basis, Ala. Code
26-10A-28; who may serve as temporary custodian of a child pursuant to the Kinship Foster
Care Program, Ala. Code 38-12-2 et seq.; etc.
The interest in ties between children and biological kin both parents and extended
family is surely legitimate. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (The State,
of course, has a duty of the highest order to protect the interests of minor children, particularly
those of tender years.); Stanley v. Illinois, 405 U.S. 645, 652 (1972) (noting that protect [ing]

11
See The National Campaign to Prevent Teenage and Unwanted Pregnancy: Key Information about Alabama
(available at http://thenationalcampaign.org/sites/default/files/resource-supporting-
download/al_summary_for_hill.pdf, last visited September 30, 2014).
22

the moral, emotional, mental, and physical welfare of the minor is a legitimate interest[], well
within the power of the State to implement) (internal quotation marks omitted). As discussed
below, Alabamas laws are rationally related to these interests.
C. Alabamas marriage laws are rationally related to these legitimate
government interests.

Alabamas marriage laws encourage men and women to marry and stay married,
preserving the connection between children and their biological parents, and between children
and other kin. Its laws therefore survive rational basis scrutiny. In this section, Defendants will
explain how these state interests are supported by Alabamas marriage laws and how redefining
marriage would impede these interests.
By providing benefits to marriage, such as tax benefits, and disincentives to misbehavior
in marriage, such as consequences for infidelity (when dividing assets after divorce, for
example), Alabama law encourages couples to get married and stay married. The law encourages
a man who fathers a child to marry the childs mother, stay married to her, and contribute to the
upbringing of the child. These benefits and disincentives thus help protect the natural right of a
child to know, and to be raised by, his or her biological parents. This in turn is, all else being
equal, in the best interest of children.
The connection thus preserved between children and biological parents, the law also
preserves the connection between children and extended kin. Grandparents, siblings, uncles and
aunts are therefore in a position where their natural inclination to care for grandchildren, siblings,
etc. prompts them to contribute to the childs welfare, and if the childs parents are unwilling or
unable to care for the child, to step in where the government otherwise must.
Alabama therefore has a legitimate interest whether obsolete in the opinion of some,
or not, in the opinion of others in linking children to an intact family formed by their two
23

biological parents, as specifically underscored by Justice Kennedy in Windsor. Robicheaux, ___
F.Supp.2d at ___, 2014 WL 4347099 at *8. Further, its laws and Constitution are directly
related to achieving marriages historically preeminent purpose of linking children to their
biological parents. Id. at *6.
Plaintiff argues that there is no rational connection between Alabamas decision not to
recognize same-sex relationships as marriages, and its interest in tying children to their
biological parents. Even if this assertion were clearly established, it would be beside the point,
legally speaking. The question is not whether excluding same-sex relationships from marriage
itself advances the states interests, but whether recognizing opposite-sex couples relationships
does. See Johnson v. Robison, 415 U.S. 361, 383 (1974) (When, as in this case, the inclusion of
one group promotes a legitimate governmental purpose, and the addition of other groups would
not, we cannot say that the statute's classification of beneficiaries and non-beneficiaries is
invidiously discriminatory.)
Nor is the States case undermined by the fact that some marriages are childless, or that
the State permits marriage by infertile or elderly couples. There is nothing about a childless
male-female couple that detracts from Alabamas goal of connecting children with their
biological parents. Furthermore, even if procreation were the States only concern, many infertile
couples nonetheless find a way to become fertile. For the State to test somehow for fertility or
parenting skills before granting a marriage license would require such government intrusion as to
be unthinkable, and such precision is not required by the rational basis test. Even if the
classification involved here is to some extent both underinclusive and overinclusive, and hence
the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this perfection
is by no means required. The provision does not offend the Constitutionality simply because the
24

classification is not made with mathematical nicety. Vance v. Bradley, 440 U.S. 93, 109 (1979)
(citations and quotation marks omitted).
Nor is it relevant that same-sex intimate relationships have some things in common
such as emotional and physical intimacy with conjugal marriages. A common characteristic
shared by beneficiaries and non-beneficiaries alike, is not sufficient to invalidate a statute when
other characteristics peculiar to only one group rationally explain the statute's different treatment
of the two groups. Id. at 78. Plaintiff does not meet his burden by showing that same-sex
relationships have some commonalities with conjugal marriages. Those commonalities are also
shared by many other non-marital romances, friendships, and other relationships.
Plaintiff further argues that the States asserted purposes are undermined by the fact that
in some cases, the father in the home is given priority over the biological father (that is, a
mothers legal husband, as the presumed father, can block legal claims to paternity by other
men so long as he maintains his own claim). That exception in the law exists because Alabama,
in its efforts to act in the best interests of the child, seeks to balance the importance of biological
connection with that of a stable, established home.
Defendants do not have the burden of showing that redefining marriage would make it
less likely that heterosexual couples would get or stay married, or that it would disrupt existing
marriages. There is nonetheless reason to believe that redefining marriage may, over time,
weaken the institution. The law teaches: it shapes culture, which shapes our expectations and,
ultimately, our choices. (Girgis Declaration at 13). If the public understanding of marriage is
reshaped by a new policy definition of marriage, [i]t may encourage people to think that
marriage is most set apart, or defined, by what the marriage-eligible relationships have in
common that the ineligible ones lack. Id. Over the course of time, then, people may think that
25

marriage is the commonality between conjugal and same-sex couples: emotional (romantic)
union. Marriage policy would be divorced from the welfare of children, and the purpose of its
existence would become fulfilling the needs of adults.
And if people absorb the lesson that marriage exists to fulfill the emotional needs of
adults, the notion of permanence in marriage becomes pass:
After all, the more people think that what sets marriage apart is emotional regard
(which can be inconstant), or that marriage is for individualist expression (which
can be hampered by sexual fidelity), the harder it may be for them to see reason to
pledge or live by permanence or exclusivity. In other words, reasoned reflection
suggests that these norms have no basis of principle if marriage is emotional
union. So they might come to seem just as arbitrary to expect of all marriages as
sexual complementarity now seems to same-sex marriage advocates.

(Girgis Declaration at 15).
Moreover, redefining marriage enshrines in the law the notion that biological mothers
and fathers are fungible, that any differences between them are, frankly, unimportant. The law
would teach that only the hateful and small-minded would believe that there is any advantage to
a child being reared by biological parents. As this lesson is absorbed, fewer fathers may be
willing to assist in the childs upbringing. More and more children may grow up without a father,
to the detriment of those children and society. The troubling trend that already exists was noted
by President Obama: We know the statistics that children who grow up without a father are
five times more likely to live in poverty and commit crime; nine times more likely to drop out of
schools and 20 times more likely to end up in prison. They are more likely to have behavioral
problems, or run away from home or become teenage parents themselves. And the foundations of
our community are weaker because of it. Politico, Text of Obamas Speech on Fatherhood
(June 20, 2008) (available at http://www.politico.com/news/stories/0608/11094.html) (last
visited September 30, 2014).
26

By recognizing and regulating conjugal marriage, Alabama makes it more likely that
children will be raised by the people most likely to love them and care for them: their biological
parents. Changing marriages definition so that it is an institution to meet the emotional needs of
adults may, it is reasonable to believe, risk (further) undermining stabilizing marital norms that
serve society. (Girgis Declaration at 15). Alabamas marriage laws are therefore rationally
related to the legitimate government interests of connecting children to their biological parents
and other kin.
D. Animus against gays and lesbians could not possibly be the source of the
definition of marriage embodied in Alabamas laws.

Plaintiff argues that Alabamas laws do not pass the rational basis test no matter what
interests Alabama asserts because its non-recognition of same-sex partnerships can be attributed
only to animus. That is not so.
It is true that the Supreme Court has struck down laws that it found motivated by animus,
such as in Romer v. Evans, 517 U.S. 620 (1996). In Romer, the Court struck a Colorado law that
singled out gays and lesbians to exclude them from state antidiscrimination laws. Id. at 624. The
statute impos[ed] a broad and undifferentiated disability on a single named group and was
motivated by nothing more than a bare desire to harm a politically unpopular group. Id. at
632, 634. And in Windsor, the Court held that Congress and the President were similarly full of
hate in passing and signing DOMA because nothing else could explain such a stark intrusion into
the States historic power to regulate marriage. 133 S.Ct. at 2693 (DOMAs unusual deviation
from the usual tradition of . . . accepting state definitions of marriage is what provided strong
evidence of unconstitutionality and especially require[d] careful consideration.).
In this case, however, the challenged policyAlabamas definition of marriageleaves
out many forms of relationships, not just same-sex partnerships. And Alabama has not intruded
27

into the powers of another sovereign by regulating marriage, but has only done what States have
always done in defining and regulating the institution. As the previous sections of this brief
discussed, there are other explanations for why Alabama has not, in any of its 195 years,
recognized same-sex couplings as marriages.
In fact, animus could not possibly be the source of the historic definition of marriage as
inherently opposite-sex. While Alabamas conjugal definition is currently expressed in a statute
from the 1990s and a Constitutional Amendment that is less than a decade old, Alabama did not
decide then for the first time that marriage required sexual differentiation. Even if prior statutes
did not expressly define marriage as an institution of one man and one woman, that has always
been the law, and same-sex marriage would not be recognized in Alabama even if the
challenged statutes had never been proposed. It was commonly understood, even without an
express definition, that marriage was an opposite-sex union. See Atty. Gen. Op. No. 83-206, in
which former Attorney General Charles Graddick opined that under prior statutes, it was not
possible for two persons of the same sex to form a civil marriage in Alabama.
And the conjugal definition of marriage did not originate in Alabama. Philosophers
throughout history, from different cultures and religions, have written about the social goods of
conjugal marriages; these views are not tied to any particular religion or region of the world.
(Girgis Declaration at 9). Nor did they arise because of a negative view toward gays or lesbians
or homosexual acts, for they arose at times and in cultures that spanned the spectrum of
attitudes toward homosexuality including ones favorable toward same-sex acts, and others
lacking anything like our concept of gay people as a class. Id. at 9-10. In fact, thinkers and
cultures around the world developed the view that only coitus could seal and consummate a
marriage, even where the other acts being considered were ones between a man and woman. (If
28

the law were just targeting same-sex relationship for exclusion, would it not have counted any
sexual act between a man and woman as adequate to consummate a marriage?) Id. at 10.
As evidence of animus, Plaintiff cites a statute addressing the curriculum of sex education
classes. However, that 1990s statute has nothing to do with the legal definition of marriage and
is irrelevant to why Alabama adopted the conjugal marriage definition at its inception as a state,
or why cultures for millennia have done so.
12

Plaintiff also cites a comment by a sponsor of a 2004 statute which proposed the
challenged constitutional amendment, which was adopted by over 80% of the voting public. The
sponsor referred to the matter as a great moral issue. (Doc. 59 at 34). It is not clear how
Plaintiff contends that the comment expresses animosity toward gays and lesbians marriage
and the welfare of children are moral issues, after all but even assuming that the quoted official
held animus, that would say nothing of why hundreds of thousands of Alabamians voted to
enshrine the conjugal marriage definition in the Constitution.
Defendants have shown that one of the benefits of conjugal marriage a government
interest to which Alabamas marriage laws are rationally related is to protect the links between
children and their biological parents. Another is to foster the link between children and extended
kin to preserve a network of care. This existence of other rational bases, and the ancient history
of the conjugal definition that has no root in animus, show that animus was not the basis of
Alabamas definition of marriage. See Lawrence v. Texas, 539 U.S. at 585 (OConnor, J.,

12
It does not appear that the sex education statute much present force. The provision discussing the legality of
homosexual conduct was passed before the Supreme Court struck laws making homosexual conduct illegal,
Lawrence v. Texas, 539 U.S. 558 (2003); and before a federal court recognized that Alabama was not enforcing the
States consensual sodomy law, Doe v. Pryor, 344 F.3d 1282 (11th Cir. 2003). In fact, Alabamas sex education
curriculum is presently under review, and it does not appear that local schools are even using the curriculum set out
in the statute. See Casey Toner, Alabama to review sexual education policy after sodomy ban ruled
unconstitutional, July 17, 2014 (available at
http://www.al.com/news/index.ssf/2014/07/state_officials_to_review_sexu.html, last visited Sep 30, 2014) (quoting
local school officials who say their schools do not address the legality or acceptability of homosexual conduct).
29

concurring) (Unlike the moral disapproval of same-sex relations the asserted interest in this
case other reasons exist to promote the institution of marriage beyond mere moral disapproval
of an excluded group.).
E. The impact of social science.
Many studies show that children brought up in intact homes do best in educational
achievement, emotional health, familial and sexual development, and child and adult behavior.
13

That isnt to say that the social science is unanimous, or that the State relies on such social
science here. It does not require a social scientist to know that people are more likely to care for
blood relatives than strangers. But if studies exist that support the assumptions of the law (and
they do), that only strengthens the case for its rational basis.
When attacking Floridas adoption law, the plaintiffs in Lofton argued that certain social
science studies demonstrated that there was no difference in outcome for children raised in gay
or lesbian households as opposed to other social structures. The Eleventh Circuit held that the
existence of such studies was not a ground to strike the law:
In considering appellants' argument, we must ask not whether the latest in social
science research and professional opinion support the decision of the Florida
legislature, but whether that evidence is so well established and so far beyond
dispute that it would be irrational for the Florida legislature to believe that the
interests of its children are best served by not permitting homosexual adoption.
Also, we must credit any conceivable rational reason that the legislature might
have for choosing not to alter its statutory scheme in response to this recent social
science research. We must assume, for example, that the legislature might be
aware of the critiques of the studies cited by appellants--critiques that have
highlighted significant flaws in the studies' methodologies and conclusions, such
as the use of small, self-selected samples; reliance on self-report instruments;
politically driven hypotheses; and the use of unrepresentative study populations

13
For a lists of relevant studies, see Marriage and the Public Good: Ten Principles at 9-19 (Princeton, NJ.: The
Witherspoon Institute 2008), available at
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB4QFjAA&url=http%3A%2F%2
Fprotectmarriage.com%2Fwp-content%2Fuploads%2F2012%2F11%2FWI_Marriage.pdf&ei=TvMIVKrGC4-
UsQT_yYHYDA&usg=AFQjCNFx-hQ0-9LCYtkfXa9yFv_-cKlpAg&bvm=bv.74649129,d.aWw (last visited Sept.
30, 2014).
30

consisting of disproportionately affluent, educated parents. Alternatively, the
legislature might consider and credit other studies that have found that children
raised in homosexual households fare differently on a number of measures, doing
worse on some of them, than children raised in similarly situated heterosexual
households. Or the legislature might consider, and even credit, the research cited
by appellants, but find it premature to rely on a very recent and still developing
body of research, particularly in light of the absence of longitudinal studies
following child subjects into adulthood and of studies of adopted, rather than
natural, children of homosexual parents.

Lofton, 358 F.3d at 825.
To the extent that the Court wishes to take into account social science and Defendants
believe this case can be decided without it it is sufficient to note that studies exist that support
the views of all parties, and each has been subjected to criticism in one form or another. Where
the social science is unsettled at best, courts should defer to the people and political branches.
V. The Full Faith and Credit Clause does not require recognition of same-sex
marriages performed in other states.

The Full Faith and Credit clause does not require Alabama to recognize Plaintiffs out-of-
state marriage license. Article 4, 1 of the United States Constitution provides that Full faith
and credit shall be given in each state in the public acts, records, and judicial proceeding of every
other state. However, it also provides, And the Congress may by general laws prescribe the
manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Id.
In DOMA, in a section not addressed in Windsor, Congress prescribed as follows: No
State shall be required to give effect to any public act, record, or judicial proceeding of any
other State respecting a relationship between persons of the same sex that is treated as a
marriage under the laws of such other State , or a right or claim arising from such
relationship. 28 U.S.C. 1738C. Alabama therefore has express statutory and Constitutional
authority to decline to give effect to an out-of-state marriage license issued to persons of the
same gender.
31

Even without that statutory provision, it has long been recognized that the Full Faith and
Credit Clause does not require a State to apply another States law in violation of its own
legitimate public policy. Nevada v. Hall, 440 U.S. 410, 422 (1979).
14
Same-sex marriage is
against Alabamas public policy, as demonstrated by the challenged statute and Constitutional
Amendment, and thus the Full Faith and Credit Clause does not require Alabama to recognize
Plaintiffs marriage license.
VI. To Preserve the Integrity of the Courts, this Court should Decline the Invitation to
Resolve a Social Policy Debate.

One cannot determine how marriage ought to be defined in law without first addressing
the question what marriage is. Alabama and Massachusetts affirm two radically different
conceptions of marriage. Alabama understands marriage to be primarily about biological
connections for children. Massachusetts understands marriage to be a device for securing
societys moral approbation of adult sexual intimacy. The Constitution of the United States does
not prefer either of these conceptions over the other. For this Court to require Alabama to
redefine marriage as Plaintiff asks, it would be choosing one controversial conception of
marriage over another, and not on the basis of law but by some other standard.
If anything, the Constitution presupposes Alabamas understanding of marriage, which
predated the Constitution by hundreds of years in Anglo-American common law, and which no
provision of the Constitution has ever disturbed. Murphy v. Ramsey, 114 U.S. 15, 45 (1885)
([N]o legislation can be supposed more wholesome and necessary in the founding of a free,
self-governing commonwealth than that which seeks to establish it on the basis of the idea of
the family, as consisting in and springing from the union for life of one man and one woman in
the holy estate of matrimony; the sure foundation of all that is stable and noble in our

14
See also Osoinach v. Watkins, 180 So. 577, 581 (1938) (holding that a marriage that is legal in Georgia but
incestuous under Alabama law would not be recognized in Alabama).
32

civilization.). At the very least, the Constitution does not require the redefinition of marriage in
Alabama law. Baker v. Nelson, 409 U.S. 810 (1972). To remain neutral, it is only necessary for
this court to follow extant Supreme Court precedent and enter judgment for the State.
A. Ruling for plaintiff would require the Court to decide what is the morally
correct definition of marriage.

There is no morally neutral ground upon which to decide which relationships should be
called marriages. Indeed the only way for this court to remain neutral on this important and
contentious public question is to enter summary judgment in favor of the State of Alabama. See
Matthew B. OBrien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political
Liberalism, and the Family, 1 Brit. J. of Am. Legal Studies 411 (2012); Adam J. MacLeod, The
Search for Moral Neutrality in Same-Sex Marriage Decisions, 23 BYU Journal of Public Law 1
(2008). Any other action would threaten the Courts integrity as an institution of law and
judgment. It would convert this Court into an institution of moral preference and legislative will.
Alabama, like many other states, has chosen to preserve the millennia-old institution of
marriage in law. The choice of those states to preserve and, in many instances, codify marriage
in law is grounded in an ancient conception of marriage as an institution that is primarily
oriented toward the well-being of children and the perpetuation of kinship. The choice of
marriage can serve other ends, too. It is rational for states to preserve marriage in order to secure
the rights of children to be connected to their biological parents, to preserve distinct offices for
mothers and fathers, to incentivize and harness the benefits of kinship altruism, to preserve
freedom of conscience and expression for religious actors and the institutions of civil society,
and for other reasons.
Whatever the interest asserted, preservation of marriage in law reflects an understanding
of marriage as a unique form of sociability with its own intrinsic goods. In order for states to
33

harness human sociability to serve public ends, states must have the authority to distinguish
between different types of relationships by name. Different forms of human sociability produce
different goods. A marriage, a friendship, a business partnership, and companionship of various
sizes and shapes all have different natures and different implications for the common good of a
society. Though other human relationships are also good in their own ways, no other relationship
produces exactly the same goods as marriagethe monogamous union of a man and a woman.
Massachusetts uses marriage law to promote quite different values. A narrow majority of
the justices of the Supreme Judicial Court of Massachusetts chose to redefine marriage in order
to express moral approval of the sexual conduct of some adults. Goodridge v. Dept of Pub.
Health, 798 N.E.2d 941 (Mass. 2003); Opinions of the Justices to the Senate, 802 N.E.2d 565
(Mass. 2004). In order to require the redefinition of marriage, four justices of the Massachusetts
high court stripped all goods out of marriage but one. The purpose of marriage, the court
asserted, is to promote stable, exclusive relationships between sexually intimate adults.
Goodridge, 798 N.E.2d at 969. Civil marriage anchors an ordered society by encouraging stable
relationships over transient ones. Goodridge, 798 N.E.2d at 954.
In its Goodridge decision, the Massachusetts Supreme Judicial Court did not explain why
a state should have any interest in the stability or permanence of inherently non-procreative
sexual intimacy. Nor did it explain why a state should have any less interest in the stability of
polyamorous groups or non-sexual forms of companionship. It simply asserted that
Massachusetts can regulate marriage only to promote stable romances between couples. The
courts controversial, moral conception of marriage emerged some months later in Opinions of
the Justices.
34

In that decision, the court considered a proposal of the Massachusetts legislature to create
civil unions, which would have vested in licensed same-sex couples all the rights and benefits of
marriage. That proposal responded directly to the courts asserted justification for its decision in
Goodridge, that it was unconstitutional to deny the rights and benefits of marriage to same-sex
couples. Yet four justices of the Supreme Judicial Court rejected the legislatures proposal
because it failed, in the courts view, to confer precisely equal status to married couples and
same-sex couples. The majority ruled that it was not legally sufficient for lawmakers in
Massachusetts to confer equal rights and benefits upon opposite- and same-sex partnerships. It
was not enough for the Commonwealth to remove moral stigma from same-sex intimacy.
Massachusetts marriage law could not stop short of placing same-sex and opposite-sex relations
in exactly the same social and legal category, apart from all other sexual and non-sexual
relationships of great personal significance. This prompted Justice Sosman to object to the
dogmatic tenor of the majoritys opinion. Opinions of the Justices, 802 N.E.2d at 579 n.5
(Sosman J., dissenting).
Plaintiff, who obtained a marriage license in Massachusetts under the authority of those
rulings, is now asking this court to supplant Alabamas marriage law with the Massachusetts
Supreme Judicial Courts dogma. Neither the Constitution nor any other law requires this Court
to honor his request. The only way for a judge to require Alabama to accept Massachusetts
conception of marriage is to go beyond the law and to enact the Plaintiffs beliefs about what
marriage fundamentally is. What the Plaintiff seeks is not the protection of a deeply rooted right
but the recognition of a very new right, with no ground in history, tradition, or the Constitution.
United States v. Windsor, 133 S.Ct. 2675, 2714-16 (2013) (Alito, J., dissenting). By asking this
Court to choose his opinion about marriage over Alabama law, Plaintiff is really seeking to
35

have the Court resolve a debate between two competing views of marriage. Windsor, 133 S.Ct.
at 2718 (Alito, J., dissenting).
In a passage that the majority in Windsor did not contest, Justice Alito observed,
The Constitution does not codify either of these views of marriage (although I
suspect it would have been hard at the time of the adoption of the Constitution or
the Fifth Amendment to find Americans who did not take the traditional view for
granted). The silence of the Constitution on this question should be enough to end
the matter as far as the judiciary is concerned.

Windsor, 133 S.Ct. at 2718 (Alito, J., dissenting). Indeed, the majority agreed with Justice Alito
that the Constitution delegated no authority to the Government of the United States on the
subject of marriage and divorce. Windsor, 133 S.Ct. at 2691 (quoting Haddock v. Haddock, 201
U.S. 562, 575 (1906)). This explains why the Windsor majority did not recognize any right to
redefine marriage but instead grounded its decision in the constitutional authority of the states to
define marriage. Windsor, 133 S.Ct. at 2691.
B. To protect the integrity of courts, the definition of marriage should be left to
those institutions and authorities that make law.

The legitimacy of judicial rulings and the integrity of judicial decision-making rest
entirely in the courts reasoning from law to judgment. [A] court must discern not only the
limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy
of its decisions rests on reason, not power. Lewis v. Harris, 908 A.2d 196, 223 (N.J. 2006). A
court that commands what a party prefers rather than what law requires is promulgating a
personal opinion. Those courts that have required states to redefine marriage have succumbed to
the temptation of creating law instead of interpreting law. Perhaps they are trying to predict some
future change in the now-binding Supreme Court precedent in favor of marriage and the states,
Baker v. Nelson, 409 U.S. 810 (1972), based upon dicta in Windsor. That seems inadvisable in
36

light of the Courts more recent admonition in Schuette to leave controversial questions to the
states and to the democratic processes. Schuette, 134 S.Ct. at 1637.
Alternatively, perhaps those courts allowed an understandable sympathy for the position
of the plaintiffs before them to influence their decisions. That is the view of Judge Feldman of
the Eastern District of Louisiana, who recently ruled in favor of that States marriage laws:
This Court has arduously studied the volley of nationally orchestrated court
rulings against states whose voters chose in free and open elections, whose
legislatures, after a robust, even fractious debate and exchange of competing,
vigorously differing views, listened to their citizens regarding the harshly divisive
and passionate issue on same-sex marriage. The federal court decisions thus far
exemplify a pageant of empathy; decisions impelled by a response of innate
pathos. Courts that, in the words of Justice Scalia in a different context in Bond v.
United States, 134 S. Ct. 2077, 2094 (2014) (concurring opinion), appear to have
assumed the mantle of a legislative body.

Robicheaux, ___ F.Supp.2d at ___, 2014 WL 4247099 at *9.
In light of the temptation to decide on the basis of empathy, it is well to recall a reminder
of the Supreme Court:
[W]here, as here, the language of the applicable provision provides great leeway
and where the underlying social policies are felt to be of vital importance, the
temptation to read personal preference into the Constitution is understandably
great....But it is not the business of this Court to pronounce policy. It must
observe a fastidious regard for limitations on its own power, and this precludes
the Court's giving effect to its own notions of what is wise or politic.

Furman v. Georgia, 408 U.S.238, 431, 433 (1972).
Courts have discovered four ways to issue a ruling requiring the redefinition of marriage.
1. Some have employed rational basis review and have ruled that it is irrational to believe
that marriage is the union of a man and a woman. That was the Massachusetts Supreme
Judicial Courts approach in Goodridge and Opinion of the Justices.
2. Some have ruled that homosexuality is a suspect or quasi-suspect classification
(notwithstanding that conjugal marriage laws dont discriminate on the basis of sexual
37

orientation; they discriminate on the basis of marital status) and on that basis have
employed heightened scrutiny. See Kerrigan v. Commr of Pub. Health, 957 A.2d 407
(Conn. 2008).
3. Some have ruled that marrying the person of ones choice is a fundamental right
(notwithstanding that the right has no basis in our nations history and traditions, as
required by established substantive due process doctrine) and on that basis have
employed heightened scrutiny. See In re: Marriage Cases, 183 P.3d 384 (Cal. 2008).
4. A court might rule that conjugal marriage laws discriminate on the basis of sex or gender
(notwithstanding that they limit the choices of each sex or gender equally and therefore
do not discriminate between men and women) and on that basis employ intermediate
scrutiny.
All four of these approaches were considered or employed by courts within the first five years
after the Goodridge decision in 2003. Other judicial decisions that have discovered a right to
redefine marriage since In Re: Marriage Cases have recycled one of these approaches, often
while pointing out the obvious flaws in the alternatives.
The four paths to marriage revisionism can be made to seem plausible, but as several
courts have recognized, none of the four paths is law. Citizens for Equal Prot. v. Bruning, 455
F.3d 859 (8th Cir. 2006); Standhart v. Superior Court, 77 P.3d 451 (Ariz. App. 2003); Morrison
v. Sadler, 821 N.E.2d 15 (Ind. App. 2005); Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006); In re
Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App. 2010); Jackson v. Abercrombie, 884 F.
Supp. 2d 1065 (D. Haw. 2012). Indeed, each path departs from established legal doctrines.
It is significant that courts requiring redefinition of marriage do not agree on the legal
basis for that requirement. If redefinition of marriage were unambiguously required by some
38

provision of the Constitution or some doctrine of constitutional law then one would expect that
provision or doctrine to appear obvious to those who find the argument for marriage revisionism
persuasive. The courts that have required redefinition of marriage have failed to persuade even
each other.
The revisionism of those courts is not without serious consequences. Their rulings have
foreclosed democratic deliberation on one of the most contested and important political questions
of our day. They cannot agree on any lawful basis for redefining marriage, but they nevertheless
are willing to deny to the people of the states in which they sit the opportunity to deliberate
together about the nature and purposes of marriage.
This court need not resolve the difficult and emotionally fraught question of what
marriage is. The court can resolve the narrow legal question presented in this case without
ending public debate on that important question. The narrow legal question is whether Alabama
has the authority to codify and preserve the ancient distinction between marriage and other forms
of human sociability. In Windsor, the Supreme Court answered that question in the affirmative.
This Court should therefore permit the healthy debate on the nature of marriage to
continue in Alabama. At this point in history, Alabama maintains a definition of marriage that
requires sex differentiation. Perhaps in the future, the citizens of this State will follow Delaware,
Hawaii, New York, and 8 other states and adopt a different view through a democratic process.
Or perhaps those states will decide that they reconfigured a fundamental institution in error, and
will emulate Alabama, or take some third course that no one has yet imagined. However it ends,
the democratic process should be allowed to play out. Democracy does not presume that some
subjects are either too divisive or too profound for public debate. Schuette, 134 S.Ct. at 1638.
15

15
See also, Transcript: Robin Roberts ABC News Interview With President Obama (May 9, 2012) (And what
you're seeing is, I think, states working through this issue-- in fits and starts, all across the country. Different
39

VII. CONCLUSION
As Judge Niemeyer wrote,
Because there is no fundamental right to same-sex marriage and there are rational
reasons for not recognizing it, just as there are rational reasons for recognizing it,
I conclude that we, the Third Branch, must allow the States to enact legislation on
the subject in accordance with their political processes. The U.S. Constitution
does not, in my judgment, restrict the States policy choices on this issue. If given
the choice, some States will surely recognize same-sex marriage and some will
surely not. But that is, to be sure, the beauty of federalism.

Bostic, 760 F.3d at 398 (Niemeyer, J., dissenting).
For these reasons, there is no genuine dispute of material fact and Defendants are entitled
to a judgment as a matter of law. The Plaintiffs motion for summary judgment is therefore due
to be denied, and Defendants motion is due to be granted.

communities are arriving at different conclusions, at different times. And I think that's a healthy process and a
healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because
historically, this has not been a federal issue, what's recognized as a marriage.) (available at
http://abcnews.go.com/Politics/transcript-robin-roberts-abc-news-interview-president-obama/story?id=16316043,
last visited Sept. 30, 2014).
40

Respectfully submitted,
LUTHER STRANGE
Attorney General

s/ James W. Davis
James W. Davis (ASB-4063-I58J)
Laura E. Howell (ASB-0551-A41H)
Assistant Attorneys General

STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
Montgomery, Alabama 36130-0152
(334) 242-7300
(334) 353-8440 (fax)
jimdavis@ago.state.al.us
lhowell@ago.state.al.us

Attorneys for Alabama Governor Robert
Bentley and Alabama Attorney General
Luther Strange

OF COUNSEL:

David B. Byrne, Jr. (ASB-0354-R69D)
Chief Legal Advisor
OFFICE OF THE GOVERNOR
Alabama State Capitol
600 Dexter Avenue, Ste. NB-05
Montgomery, Alabama 36130
(334) 242-7120
david.byrne@governor.alabama.gov

Additional Counsel for
Governor Robert Bentley
41

CERTIFICATE OF SERVICE
I certify that on October 1, 2014, I electronically filed the foregoing document using the
Courts CM/ECF system which will send notification of such filing to the following persons:

Gabriel J. Smith
FOUNDATION FOR MORAL LAW
1 Dexter Avenue
P.O. Box 4086
Montgomery, AL 36103
Telephone: 334.262.1245
gabriel.joseph.smith@gmail.com

David C. Dinielli
Samuel E. Wolfe
SOUTHERN POVERTY LAW CENTER
Montgomery, AL 36104
Telephone: 334.956.8277
david.dinielli@splcenter.org
sam.wolfe@splcenter.org

s/James W. Davis
Counsel for the Defendants

42

EXHIBIT A

BAKER V. NELSON, JURISDICTIONAL STATEMENT
NO. 71-1027 (OCT. TERM 1972)

EXHIBIT B

DON BROWNING AND ELIZABETH MARQUARDT,
WHAT ABOUT THE CHILDREN? LIBERAL CAUTIONS
ON SAME-SEX MARRIAGE, IN THE MEANING OF
MARRIAGE: FAMILY, STATE, MARKET, AND MORALS
(SCEPTER 2006), EDITED BY ROBERT P. GEORGE AND
JEAN BETHKE ELSHTAIN

EXHIBIT A
BAKER V. NELSON,
JURISDICTIONAL STATEMENT
NO. 71-1027
(OCT. TERM1972)
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.A.ppeilMzts,
-V.-
GERALD R. NELSON,
AppeUCB.
05" Al'l1'JIAL DOM TilE SUl'lIBKK COURT 011'
,JtJ1USDlCTIONAL STATEMENT
R. WZTa:l!:I1IlEE
Minnetlota Uivil Libertietl Union
2SZ3 t Hennepin Avenue
Minneapolis, Minnesota IiM13
LY1UI S. CAl!TNllB
1625 Park A.venue
Minneapolis, Minnesota 554Q4;
A'tortltyS for Appellants

29 of
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INDEX
P.tG&
JmusPIO'llOl'tAL SU1'lUtll:N'r
Opinions Below ........___........_..........__..........._.......... 1
JUrisdiction _______........___................_.__....... 2
Sta.tutes Involved ......_......__.._......_ .._..____ 2
QuestionsPresented __..... ...._._........... S
8ta.tementofthe Case __...____._..__._._......._... 3
HowtheFederalQueSti01lsWereRaised ..._........... 6
TheQuestiollllAreSubstantial ........................._....... 6
1. Responde.nt's refusal to sanctIfy appellants'
marriage deprives appellants 01 'liberty and
property in violation ot the due pr0<Jt8s and
equalprotectionclauses.............___..__._.......__ 11
u. Appellee's reusa.l to lilgitilllate appellants'
.lIULrriage wnstitutesanunwarrantedinvasion
of the priv80Y in vlol8.tion of tlte Ninth and
FourteenthAmendments_......................._........... 18
CWCLl1SIOllT .... _............ _...._ ....___.................................... 19
.A,nmTnIX
Statutes Involved
Chapter 517, Minnesota. statutes...................... 1&
.Alternative Writ of Mandamus ..._........................... lOa
1-0
'n>

I\)
a
.....
w
ii
Order the Writ...... ......._..._.._ ..._. III
Amended Order, Findings and Conclusions __,_ 14& '.
Opinion ot the l{innesota Supreme Court, Hea.
Depln COlllity ..:.......,................_..:.:.._..........._....... J8e
. '.
.:TA.BLE"OJ!' Atmiolll'l'lES
Cases;
Bateav. Cityot ;LittleRook,:861 U.S. 516 (1900) ....._.. Lt
noddiev. Connooiicut. 4()1 U.S:.311 (1971) ......11. 13,1'
Cohen v. California, 403U.S. :&:i (1911) ........................ If
Griswoldv. 8131 U.S. 419 (1966) ........11.12, 13.
. , '. U.l8, 19
"
Jonesv.Hallihan, (Ct.Apps. Ky. 1971) ......_ 10
Lovingv.Virgirtia;388U.S. 1(1961) ................11.12,13,14.
.. . 15,16,18,19
McLaughlinv. 879 U.S. 184 (Ui64) ............18,16,18
Meyan.Nebraalm,.262 U.S. 535'(.1923) .............."".11,12.18
Mindel v. United, StatesI;livil'&rvice CommiSSion,
81211'. Su1>P. 48.5.(N.I):Cal. 19"70) ....._............___ 18
Reed v. Reed,92.S.-at.251,30D. e'd.2d225 (1971) -..13,16,
. ... I '. 17,18
RoysterGuano v. U.S.412 (1920) _" 17
I. i
Shapirov. U.s.61S (1969) ._.........._..... 16
Sheltonv. Tucker,3G{U.S.4:79 (1960) _......................... 14
Skinnerv.Oklahoma,lUGtr.S. {1942) ......_.._..11,12,13
Streetv. NewYork. U.S" (19G9) .q..._.....q........ 14-
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"PAGE

States Constitution
Amendment _....__..........._.........._.................. 5.6
Eighth Alnendment ..................................._................. 5,6
Ninth Amendment ..._.........._ ..._.__............3,5.6,18,19
Fourteentll Amendment ........._..3,5, 6,11,13,17,18.19
Rule:
Minn. R. Civ. P.52.01 .........- __......._ ................................... 5
Federal Stewte.:
28 U.S.C. ..........................-._................._........... 2
Beate SeaMe:
Minnesota Statutes
Chapter 517 ..............................._..........................2.4,6,13
Other Auflwrities:
Abrs.harnsen, Cl'illle alld the Human Mind 117 (1944) 9
Cburcllill, HOlllOseXUal BelJavior Among Males 19
(1969) .._.........................._....._._..........._...............-.......
FinalReport of the Task Foreeon HomosexuuJ.ity of
the NationalInstituteofMental Health,October10,
1969 ....................__._....:..._.................._........_...............
Finger, Beliefs awl Practices A,,,.ong Mate Golle-gc
J. ABNORIIUL UD SOCIAl". PSl'Ol:L 51
(1947) ......._._ ...__...._..................._...............................
Freud,107Am.J.ofPsychiatry186 (1951) (reprinted)
8
9
1
10
......
w
iv
\. 1".lGI
Hart,Law,LiOOrtyandMorality50 (1963) .................._ 9.
James,TheVarietiesofUeligious lectures
XI,XII,XIII cl902) ........__...........:_........_...h 8 ....._...
. .
.K.ur8l!:Y, SEXUAL Bf;HAV!O!,!- IN' THE M.u:.:m (1948)
7
',' '. .
Westermarek, 2OriginandDevelopment ofthe Moral
Idea484 (1926) .............._......._;......._ ._ ......__......_ 8
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&upreme C!tDUrt nt.tf1e Uutte!) &tales
OCTOBER TslI.M', 1912
No._.........
RlOHAm> JOHN' BAuK, et at.,
Appellants,
-V.-
GERALD R. NELIlON,
Appellee.
ON ..u>l'EAL J'BOM THE BUP:a:EHE COURT MINNESOTA
,JURISDICTIONAL STATEMENT
Appellants appeal from the judgment of the Supreme
CourtofMinnesota, entere<l on Oetooor 15, 1911. and sub-
mitthisStatementtoshow thattheSupremeCourtofthe
UDited Stateshasjurhldictionofthoappealandthata sub-
stantialquestioD ispresented. .
OpiniOUli Below
The opinion of the Supreme Court of Minnesota is re
ported a.t 191 N.W.2d 18.1). The opinion of the District
Court for Hennepin County is unreported. Copies of the
opinionsaresetoutin theAppendix,mlt'a, pp.10a-17aand
1Sa23&.
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Jurisdiction
Thissuitoriginatedthrougnanalternativewritof mall.
damua to ..tu issuethe.1I18niage license to
appellants. The writ of Jllandamuli was quashed by the
HennepinCounty District Court on JanuaryS. 1971. 0.
appeal, thejudgmf:ntofthe. Supreme CourtofMinnesota
a.IfI:rming theaction:ofthe Court was entere4 011
October15,1911. NoticeofAppel;\l to theSupremeCourl
of the United States'was1Ded iu the Supreme Court or
Minnesota on January..lO. 1912. The time in which to filt
this Jurisdictional.'StatementwasextendedonJanuary12,
11)72, by order of Juitiee nlaokD!un.
.'
The jurisdictioD of" (b!i'Sllpreme'Court to review tbill
deeision OD appeal is by Title 28 u.s.a., Seo-
tion1257(2). .....
" Involved
Appellants have- never been advised by appellee which
statute precludes theiIISlianee of''the Jnarriage license to
them,andtheSupremecoUrtofMinnesotacitesonlyChap.
ter 1111, .in tts,opinion. ACCOrdingly,
thewholeof Chapter51'1.isreproduclld inApp., infra, pp.
1a...9a. .':, . ,:'
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QueetioDll Pre.ented
1. Whether a.ppellee's refusal to sanctify appellants'
marriagedeprivesa.ppellantsoftheirlibertytomarry
andoftheirpropertywithoutdue process oflawun
der the Fourteooth Amendmllllt.
2. Whether appellee's refusa.l, purlluant to Minnesota
marriage sta.tutes, to sanctify appellants' marriage
becausebothareofthemalesexviolate.their rights
under ilie equal protection clause ofthe Fourteenth
Amendmllllt.
S. Whether appellee's refusal to sanctify appellants'
marriage deprives appellants of their right to pri-
Va()y under the Ninth and Fourteenth Amendments.
Statmnent of the Calle'
Appellants Balter and McConnell, two persons of the
male sex, applied for a marriage license on YAy 18, 1910
(T.9;A. 2, 4) at the office of the appellee Clerk of Dis-
triet Courtof HennepinCounty" (T. 10).
l T. refers to the trial trlmllCript. A. refers to the AppendiJ: to
appellants'briefbefore theMumesotll. Supreme Court.
Appe1laut MoCwmell is also petitioner befora this Court in
MOOOllMU v. Ander80!1, petit. for em.filed, No. '1]978 in which
beseekaJ'flviewofthedecisionoftheUnitedStatesCourtof Appeata
for the Eighth Oll'lluit, allowing the Board of Begent1l of the Uni.
versity of Minnesota to refuse bim elllployment lIB head of the
cataloguedivision of theSt.PaulCamPWl Librar), on the groWlds
that"IlispersonalconduBt, l1li repreKt!lIted ill the public and Uni.
versity newa lIIedia. is notcoDsilltent with the interest of the
University." . .
The efforts of appellants to get married evidently percipitatad
the Regents' deewon not to ewployMr. McConnell.
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Upon advice of ':the office of the Hennepin County At-
torney.appelleeacceIltedIlPliiillants'applicationandthe....
upon requested a'fonIlal:opinion 'Of County Attol'llef
(A.7-8) todetemiine whether themarriagelicense should
be issued. Inaletterdated May 22, 1970, appelleeNelllOll
notified appellantBaker he "unable to issuetho mar
riage license" "sufficient legal impediment 1iet
thereto prohibiting the marriaS-e of two male persoa."
(A. 1;T. 11). H'Owever, appellant haa ever heeD
informed that lie iii individually incompetent to mar!,),.
andno specific bas';ever been given for notiS9UiDI
thelicense. '.
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MinnOS'Ota. Statutes;section 1.'117.08 states that only the
following information :will, be elicited c'Oneerning a mar-
riage license: nam.e, residence;date and place 'Of birth.
race, terminati'On''Of pro'lious lllarriage, signature ofap.
plieantanddate Altho'l1gh they,were asked oraUy
atthe time 'Of which,was to be thebride &Dd
whioh was to be the'groom (T. T. 18), the forma for
applicationforamairiageJicense'didnotinquire8S tothe
I . '!I'
sex'Of theapplieants; l-Iowever,appellantsreadilycoucede
thatbothareofthe'male89L
Subsequentto ,den:iil:1'of 'a appellantsconsulted
with legalcounsel. On December 10. 1970, a.ppellants ap.
plied to the Distnct Conn of,Hennepin County for aD
alternativewrit'Of (A. 2),and sucha writ'WU
timely served 'Appellee Nelson continued
to refuse to issue tM appellantsloa ma.rriage license. In
stead, he elected to appear in. C'Om.t, show cause why hi
had not done as oomma.n<led, '.and make his return to the
writ (A.4). ,,'.' :' '.
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The matter was tried on January 8, 1971, in District
Court, City of Minneapolis, Judge Bergin prtlsiding
(T.l). Appellants BaJror andMcConneU testified on their
own behalf (T.9;1'.15) asthesolewitnessl:llil. Afteroloil-
ing arguments, he quashed the writ of and
ordered the Clerk of District Court "not to issue a mar-
mgelicense to the individuals involved" (T. 19). An or
der was signed to thQt effect the same day (App. infra,
p. 12&).
Subsequent to the trial, counlilel for appellants moved
the court to fimi the facts IIpecially and statel:leparate1y
its conclusions oflaw pursua.nt to Minn. R. Civ. P. 52.01.
Judge Bergin then madecertain findings of fact and con
clusions of law (App. itn./ra, p. 14&) in an aJUllnded or-
derdatedJanuary29, 1971. Suchfindings andconclusions
were incorporatedintoSlId madepart'Of the order signed
January8, 1911. The Courtfound that the refusal ofap-
pellee toissue themarriageliceasewas nota violation of
M.S. Chapter 517, SlId tllat such refusal was not a viola-
tion of theFirst, Eighth, Ninth or ll'uurteenth Amend-
ments to the U. S. Constitution,
A timely appeal was made to the Supreme Court of
Minnesota. Inan Ol)inion flIed'October 15, 1911, the Su-
preme Courtof Minnesota. affirmed theaction of thelower
court.-
_In early August, 1971, .Tudge Lindsay Arthur of HOlUlepin
CountyJuvenile Oonrtissuedan01:4e1: grantiDg the legal adoption
of Mr. Baker hy Mr. MeConnell. The adoption permitted Mr.
Baker to (!III!.nge Ills name from Riehard Jo1u1 Bilker to Pat Lynn
McConnell, On A.ugust 16, Mr. Mlehlilll Itle(Jonnell allllle applied
for a marriagelicellse in Mankaw, Blue CO\Ulty. Minnesota
fa!'himselfandMr.Uaker,wllo UKed thenaruel'atLynll McConnell.
Under IIlinnel!otli. law, only Olae party need apply for a marriage
license, Since themarriage applielltioll does lIot in'luire lIS
!....
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How the Fe,deral Were RaiSGd
AppelIants contended thllt if Minnesota Statutes, Chap.
ter 517, were COlllitrutod so as to not allow two persona or
the same sex to lJUliiy, then the"Statutes were in violalioll
of the It'irst, Eighth, Nintll, IUId Fourteenth Amendment.
to the United States Constitution .in their Alternative Writ
of Mandamus (App. in/fa,' pp. lOa-lla}, at tlte Ilsaring
before the District Court on January 8,
1911 (App. infra, '1', 1'28.), ilnd to the Supreme Court or
Milmesota (App. infra, po. constitutional clail1ll
were expres.sly considered 1m9 rejected by both courts
below. :,
The Are, SUh8tlU!tiai
'. . .
The precise question' is t"!'o individuals, solely
because they are of the SA\lle .lIex, 'Ulay be refUsed forma.!
legal sanctification ratilicatipu 'of their marital rela-
tionship. ' , '
At mst, the qnellq'on and relationahip may
well appear ,'to heterosexuala. :But
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to _, the biae.xual nalne Pllt McConnell doubtleea kept
the cleric from Jullkillg Any about, the seXE$ of the llarti-.
Shortly aftar the Iiceruie iIIlIl,li, Mr. !doCol1lleJl', adoption {If Mr,
llaket' Willi made puhllc .by"Judge Artbul"-ContrafY to Milll1eaota
IllIV. 'the County Attllraey for Earth County then diaeoveHd
that a lIIarrie.ge lkense had isl;ued to ,t,Jle 81)(Iellunts, IIoIld on August
81, he "declared the license void,oIl: growuis," Neverthe-
on September a, tlllI lIppclla.utli'. were married in a
(;eren\<)UY In South Minneapolis. Aoo'!1t a week later the lieenae
WIlS to the Blue Earth CooritY.Clel'k of Dilltrict Oourt. It ia
not known wiIetber lie lIIed it, luit, ullder Ule l\1ilUlesota statllte
Us not required. ;t"urtllfll",' filiuS do.' not ailed Vllliditr.
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aeither the question nor the proposed rela.tionship is bi.
lIIItte. Indeed, that first impulse provides us with some
:' sneastll'6 of the continuing Impact on our society of preju-
dice against non-heterosexuals . .And, 8JI iIlwnillated within
the oontext of thiB case, this prejudice has severe eonse
The relationships contemplated is neither grotellque nor
\IIlIlommon. In faet, it has been established that homo-
aexuality is widellpread in our society (as well as all other
societies). Reliable studies have indicated'that a signif-
icant percentage of the tol:al. auult populatil1u ot the United
States have engaged in overt homoseJtuai practices. Nu
.bl,&rOus single sex maritall'elatioDshlps exhit de facto. See,
e.g., A. KIliSli:Y, SZXUAL BEHAVIOfl UI' THE Bl71UN MALl!I
(1948); FiDgor, Bel1l Belie/a and pf'a.ctices A.mong MqJe
College SWiJe'1lJs, 42 J. ABNO.llJl{AL AN'D SOClloL PsYOH. 57
(1947). The refusal to sanetion lIuch relationships is a.
denial of reality. Further, this refusal denies to mllDy
people important property and personal interests.
This Jurisdietionai Statement undertakes to outline the
rmbstantial reasons why persons of tIle same sex would
want to be married in the sigllt Ot the law. Substantial
property rigltta, and other Interests, frequently turn on
legal retJognition of the marital relationship. Moreover,
both the personal and public symbolic importance of legal
ratification of !lame selt marriages cannot be underesti-
mated. On the personal side, how better may two people
pledge love and devotion to Dlle another than by marriage.
On the public side, preju(liee against homosexuals, which
tends to bp. phobie, is unlikely to be cured until the public
a.eknowledges that hOln03exna!s, like all people, are en
titled to the full protection and recognition of the law
8
Only then will public perceive that homosexuals are
not freaks or uniortl,mate to be Hwept under
the carpetor to be for IlllXioUIl pJiantasies aboul
one'sidentity orchildrElarmg
..
A vast literature reveals'.'sevei'a!'IlypotheseN to expla.in
the deep prejudice aga"imst homosexuals. One authority
maintained thathostility, tohqmoseximl conductWall orig.
inlillyan"aspectof';lcOnOmiCIl," in thn.t'itreflocted the eco.
nomic importance of lurge'fuililly grtlupings in pastoral
and agriculturuJ. societies, E. Westc.rDJarck, 2Origin and
Development of 140ral Idea 484 (1926). A secOlid
theorysuggests thathomosexuality wall originally forbid.
denby the"early part.ofeffor.ts to "surround
,,the appetitive with prohibitions." W.
HomosexualBehaviorAlDOngMaillS19 (1969). Underthi'
theory, opposition to clolll'ly related to
religious imperatives,'fh 'the need to establish
moral Buperiority ;t'.agan [d., at 17; ses alllO
W. James, TheVa.rieties of Heligiolls Experience, lectures
Xl,XII, XIII (1902).' ":" ,,!
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WhatevertheapPl'opriate ofitsorigins,psy.
chiatrists and sociologists'are nearly agreed on the
reasons for the of the postility. Itis ODe of
".
those"ludicrousandhamiful
tJ
prohibitionsbywhichvirtu.
, . ,
ally alI sexual matter!! are still. .reckoned "socially taboo,
illegal,pathological,orhighlycontroversiaL" W.
supra, at26. It continul!1l; a8it q;Uite with.
out regard to the aetual uhara9,te#stics of homosexuality.
Itisnourished, all are thevariQUS oULer sexual taboos, by
anamalgamoffeara:iLd- ,ld., at20..35. ItUr sup-
ported by a popular of the causes and charac-
teristicsofhomosexuality that'isno'more deservingof our
reliance than the J,i1rnperor belief that homo-
9
sexuality causes earthquakes. H. Hart, Law, Liberty and
Morality 50 (196B).
There is now responsible evidence that the public at-
titudetowardthehomosexualcommunityisaltering. Thus,
the Report of the 'l'ask Force on Homosexuality of
the National Institute of Mental Health, October 10, 1969,
states (pp. 18-19):
"Although many people continue to regard homo-
sexual aotivlties with l'epugnance, there is evidence
thatpublicattitudesIlrc changing. Discreothomosexu-
ality,togetherWiUL nJanyotheraspectsofhumansexua.l
behavior, is b4Jing.recognized more and more as the
private business of the individual rather than a sub.
jeCltforpublicregulationthroughstatute. Manyhomo-
i
sexuals are good citizens, holding regular jobs and
!
leadingproductive lives." I
To a certainextentthe new attitudes mirror increasing
!
scientific recognition that homosexuals are "normal," and
that acoordingly to penalize individuals for engaging in
suchconductisimproper. Forexample,inD. Abrahamsen,
Crime and the Human Mind 117 (1944), it is stated:
"AllpeoplehaveoriginallylSisexualtendencieswhich
are more or less developed aDd which in the course I
I
oftimenormallydeviateeitherinthedirectionofmale
or female. This may indicate that a trace of homo.
I
sexuality, no matter how weak it may be, exists in
everyhumanbeing."
I
Sigmund Freud summed up the present overwhelming
i
attitude of the scientificcommunity when he wrote as fol- i
lowsin1935:
I
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"IIomoseS:llality ill assnredly no' advantage but it i.
nothing to be ot', no no (tegrlldation. it
cannot be classified as an ilInclIlJ i we consider it to be>
a variation of the sexual produced by a eel-
tain arrest of sexual ,development. MWlY highly J't.
spectable of arte!,ent and Dlodern time!! JlILve
been hOlllosexualS, ,silvera} 'of tlle greatest lnen amDIIA;'
them (Plato, cia Vinci, e1.(:.,.
It is a great injnstice to pers!!Cute homosexuality 81
crime and cruelty tuo." 'lteprinted in 101 .Am. J. oC
Psychiatry 786..81'
In the face of seientifiil knqwledge and changing public
.. , li:tti.tudes it ill plainly. all 'Freud said, "a great injustice"
to peraooute homosexUfl'ls. . _. '
Ttlis injustice is COIJlPuunQ.'ed, we suggest, by the flltt
that there is no jUlitificatiOD in for the discriminatioa
agailUlt homosexuals.' -;Beeause. orabilling prejudice, appel.
lants are being delll'ived of', a right-the tight to
marry. As a. result or. this they have been
denied numerous benefits .awarded by .law to oth&rB I!imi-
Jarly situated-for childle{!s heterosex\'w couple.
Since this action ''Ilinin filed, others have been insti.
tuted in other stat4!a. 'I'Jlis C9uf t 'SI decision, therefore,
would affect the mauiage of virtually every State
in the Union. '''..
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See, e.g., Jon611 v (Ct. Apps. Ky. 1971).
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J.
Respondent'a refwlal to ea.a.ctffy appeJJaa18' marria,8
deprives appeUaDlti of liberty and property ill violation
of the due prOCNa aDd protec:tloa claUlleti.
The right to marry is itself a fundamental interest, fully
protected by the due process and equal protection clauses
of the Fourteenth Amendment. See Boddie v. Oomr.ecticut,
401 U.S. 371 (1971); Lovi'flg v. VirO-i",ia, 388 U.S. 1 (1967) ;
Griswold v. OcmnBctiC'Ut, 381 U.S. 479 (1960); 8'ki'n'ller v.
Ohkwltrw., S16 U.s. 535 (1942); Meyer v. Nebraska, 202
U.S. 535 (1923). In addition, significant prnperty interests,
also protected by the due process cla.use, flow from. the
legally ratified marital reJationship_ In his testimony at
the trial, the appellant Baker enumerated six sucb in.
terestl! which he cannot enjoy because of the State's re.
funl to recognize his marriage to the appellant MeCOWlell:
L '!'he ability to inherit from one another by intestate
succession.
2. The availability of legal redress for tlle wrongful
death of a partner to a marriage.
. a. The ability to sue under hearlbalm statutes wllere
in eft'ect.
4. Legal (and cOllsequently cOmmunity) recognition for
their relationship. '
5. Property beIlefits SOC}1 iUl'the a.bility to own p rollerty
by tenancy-by-tbe-entirety in states where permitted.
6. Tax benefits under both Minnesota and feeeral stat
utes. (AmOl1g others, theB8 include death tax benefits
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and income under the revieed Fet!-
eral Income .
There are irul.lnneraule other legal advantages that CAlI
be gained only inthe relatiol1$hip. Only a few or
these will be listed ,fer iIlust.I:ll.tive !Jurposes. Some lltat'!
climinallaws prollibit aeXllll.l allts between unmarried per.
SOliS. YIUlY governu.ent beneJi.ts aro available only to
spouses and to surviVing spouses. .This is true, for ex-
amIlle, of many Rights to public bouamg
frequently turn on "8, inariW relationship. FInally, wnell
there is a formal lnl/-r.Ual on,! spouse CSJInot
.. give or be forced to, evidence againat the other.
The individnal's iritel:esta,' pereol\a't and property, in ..
marriage, are deemed fundal,ellta(: e.g., Boddie v.
Oom:.ecticut, .supra; V. Jlirginia, 8fllJra,j Griswold
v. Oonnecticut, v. Oklakonuz, 8Up1'a; Meyer
v. .supra:' ':!-'lIUS' !illirria&,e comprilles a blUldle
of and interests, ml!-y.'not be interfered with,
under the guise of protecting the public interest, by gov-
ernment action which' hi or' invidious or wftiJol1t
at least IIreasonable.; to 80m\,! important and legiti.
:m.a.te state purpose. Fl.&: Meyer v. ;Nebrll8ka, 8UprQ.. In
fact, because marriagli is'!l- fundamental burna:n right, the
state must demonstrate a subord!nllting interest wllich Is
comp&lling, before it. may 'interfere.. with or prohibit mar-
riage. Cf. Bates v. Cit'll of Wlle,;R4t:k, 361 U.s. 616 (1960).
In a sense, the ana,I-ysi.s presented here involves' a.mWDg
of both dne ptotection doctrines. Aft
they an applied to ilie w? hI disability at
issue in this case, they tend to mel'S'!. Refusal
to sanctify a marriage solely because both parties to the
'11 .'
18
relationship are of thll same sex is precisely the kind ot
arbitrary and invidiously discriminatory conduct that is
prohibited by the F.ourteenth .A..mendaumt equal protectioD
and due proceliB clausell. Unless the refusal to sanetify
can be shown to furtber Ilome lcgitbnate government in-
terest, important personal and property rights of Ole per-
Bons who wish to many are arbitrarily denied without
due process of law, and tlte class of persons W}IO wish to
engage in single sex marriages are being subject to in-
vidious discriminlltion. With regard to the due process
component, see Boddie v. Co-nnecticut, St'P7'O,j Grnwold v.
OOMleCtiaut, 8'Uprg, (all the tnajority opinions); 1I1eyer v
Nebraska} supra. With regard to tile Bqllsll>rotectioD COlll-
ponent of this argument, see Loving v. Virgi.1'ia, S1I.pra;
McLaughU", v. Ftorido., 379 U.S. 184 (HJ64) j Bkitlner v.
0"141107114, .supra; c. Reed v. Reed, 92 S. Ct. 251, 80
L.ed.2d 225 (1971).
Applying due process notioia, in this Ctlse, the sUi.te has
not shown any reason, much Jess a compelling one, for
refusing to sanctify the marital relationship. Its action,
therefore, arbitrarily invades a fundamental right.
Separately, each appellant is eompetent to marl')' under
the qualifications sllCcilied, in Minnesota Statutes Sections
511.08, subd. 3, 517.02-517.03. CompaN Loving v. Virginia,
.supra. 'Why, then, do they beeome incompetent w}len they
seek to marry eacb otherf
The problem, according to the M'i:nnesota. Supnme Court,
appears to be definitional ox: historical. The institution of
marriage "a.s a. union of a man and a woman, uniquely
involving the procreation and rearing of children within
a family, is as old as the Book of Genesis" (App., infra,
pp.208-21a). 011 its face, however, Minnesota law neither
i
o
Q?
.....
.....

&S
-- 0
o
,....,
I.....
"w
14
statesnorimplies this deihlition. F\\rthermol'e, the anUq.
uityof a restrictioncertaUlJy 110 bearingon itsconsti.
tutionality,anddoes not,withoutInytlringadditional,dt.m.
onstratethattheatate'liirlterestiii tin6ltlliberingtliematH.l
relationshipis8ubordi.n!LJuignnd'compelling. Connecticut's
:restriction on birthcontrohfevicetlhad been 011 ite statute
booksfornearlya centuty,beforetJlil! Courtstruckitdown
on the ground that itlUiconstitlltionally invlI.dml tile lId.
vacy of the Jtlantall'eltl.tionsltip. Gt'is'WolcL v. COn1leCliCIII,
sUP""
. "SurelytheM.j.nnesota'SUlll'lllne cannotbesuggest
ingthatsingle sex lI.1ay.be'hlJiuied becaUJIe they
are bya or os'r population to be
sociallyreprehensible. 81Jcll Iigovernmental motive would
be neither substl!.n..tial.nor, 1iubordinating nor legitimatl>.
See, e.g., lAving 'v; Viiginw':supra; 001,e", v. OolilorniD,
403 U.S. 15 (1971v; 8trCt!.t .NewlYork, 894 U.s. 576
. I,
. , ' (1969).',' .'
Even assuming tllat eonstitutionally
make marriageability on the partners'win-
I,
.ingqelJll and a.bility to a,nd 'to raise children,
:Minallsota's absoluta bap QP'>lingle.:sell: marriages would
stillbe1lll.eonstitutional. tlllYUgh thegovernmental
purposebe legitimateand 8l1bstantial{,(hatpurposecannot
be pllrslled by means tllat hroadly':sti'fle fundamental por
sonallibertieswhenthef.pd,canbe m?r8narrowlyachieved.
The breadth of legislative- nh;:iclgment"must be viewed in
theligbtoflessdrasticmeaJI8 ffJr';'chievingthesa.mebasic
purpose." SMUOGv. 364 tr:S, 479, 488 (1960).
Thereisnothingin tla!np,tm's of 8iIX marriagaa that
precludesprocreationan,lI,cbild Adoption isquite
"
"
15
clearlyasocially formofprocreation. Italready
renders procreative many marriages between perllons of
, oppositesexesinwhich thepartnel'8arephysicallyoremo
tionally Ullable to conceive their own Of late,
even single persons have become eligible to be adoptive
parents.
Appellants subllut thllrefore, that the appellee cannot
describea legitimategovernmentlnterestwhich is so com
pellingthatno lessrestrictivemeanscanbefl:>und tosetlUre
that interest, ifthere is oue, than to proscribe single sex
mlU'liages. And,evenifthetestto beapplied todetennine
whether the Minnesota proscription offends due process
involves only qnestiolls of wluttller Minnesota has acted
arbitrarily,capriciouslyorunreasonably,appellantssubmit
that the appeUee has failed under that test too. Minne-
sota'sproscriptionsimplyhasnotbeenshown toberation-
allyre1ated toanygovernnlental interest.
The touchstone of the equal protection doctrine as it
bellrII on this ease is found in Loving v. Virginia, 388
U.S. 1 (1967). l"1Jle iSllUe befol'a the Court in that ease
waswhetherVirginia's statute,prohibit-
ingmarriagesbetween 11ctSODs of the Cal1caaian race and
any other race was unconstitutional. The Court struck
doWll. thestatutesaying:
There is patently no legitimAte overriding purpose
I.:ndependent of illvidioUfl racial discrimination which
justi1iesthisclassification. Thefact thatVirginiapro.
hibits only interracial marriages involving wllite per
sons demonstrates that Ule racial clallSifications must
standon own justification as measures designed
to maintain Wbite Supremacy. We Ilave eonsistently
1
t-
0\' ..
'.
I
I'
I,
I
\
I
16
:. f
denied the constitutionality of measures which restrict
the rigJlts 01 on ac.count of race. There C&II
be no doubt tltai' :s:esh'icillng the freedom to marry
solely because of J..Mial.cl!l,saifications violates the cell-
tni meaning of Clause. Lot'ill,
v. Virginia, SSS .U:S. 8t'1112. ..
The Minnesota Supl'eme Court ruled that the Lovittg
decision is inapplicable -to tile instant case' on the gronnd
" _ .,that "there is a clear. between a marital reHtric
tion based merely upon rAce Ilnd one h;1lied \\11011 the funda.
mental difference in sex!' (App:, inf;'u, 1). 28a). It is tnl!
that the inherently susi;ect test which thill Court applied
to classifications based UllOn tace., (ooe, e.g., Loving ,.
Virginia, supra,; v. 'Flqrida, supra), has not
yet been extended to based upon lIell: (see
Iteea v. Reed, 92 S. Ot: 251., 30' L. ed.2d 225 (1971). How.
ever, this Court bas 'ill(licated Ulat a fundamental
right-eUc}1 as denied .to a group hy some
'..
classification, the dewal liltoulii be j114ged by the stand/l.fd
that places on the. 'burden of delnoniltrating
a legitimate subordinating that is compelling.
Shapiro v. Thompllo.n, 3lJ4' U.S. 618.. (1969). As we have
already indicated neiUler a. nor a subordinating
reason for this halJ' been. or can be ascribed.
Even if we assume. that the classmeation at illSue in this
easc ill not to be judgea .iIY' more. stringent "constitu.
tionally snspect" an4 interest" standards,
the :Minnesota claflllifi.cation is infirm.
.: ..
The discrimination jn. this caee is one of gender. Espe.
eialJy significant in this tilt'! Court's recent de-
cision in Reed v . .Reedi 92 S. Ct. 251, 80 L. ed.2d 225 (19'11),
. .....
.,"',
11
which held that an IdaJ10 statute, which provided that as
between panORa equaUy qualified to administer estates
males must be vre1'el'red to females, is violative of tlle
equal protection claUiSe of the Fourteenth Amendnillut.
There the Court sa.id (30 L, ed.2d at 229):
In applying that ('laU5C, this Court lIas consistently
reeognil1led that tile Fourteenth aIllllndment does not
deny to States the power to treat different elasses of
persons in different ways. [Citations omitted.] Tlle
Equal Protection Cla.utle of tllat Amendment does,
however, deny to States the power to legislate tllat
different treatment be accorded to persons placed by
a etatute into different classes on the basis of criteria.
wholly unrelated to Ule objective of that statute. A
elassmcatlon "must be reasonable, Uf)t arbitrary, aud
must reat upon some ground of difference lllloVillg iii.
fa.ir and substantiaL relation to tbe object of the legis.
lation, so that all persona similarly circuIl:lstaneed
lIhall be treated alike," Itollster Gl'ano Co. v. Vi"ginia,
253 U.S. 412, 415 (1920).
Childless sa:me sp-x couples, tor example. are "similarly
circumstanced" to childleSll heterosexual couples. Thus,
under the Reed and Royster cases, they must be treated
alike.
Even when judged by tide less stringent standard, the
Minnesota CIIlBSifica.tioll ea.nnot PIlBS constitutional JIIuster.
First, it is difticult to ascertain tlte objl'flt of the legislation
coustrued hy the M!nnesota 'collrts. SecDnd, wbatever ob-
jeots are ascribed for the legislation do not bear any fair
and substantial relationship to the gronnd upon which the
"
18
diff'eren(le is drawn. same sex and llilrerent lex
lIlarriasea.'
.......,-
IL' I'
.,'
Appellee's refulal ,.legitmiiue. appellants' mD'l'iIIp
cOlUlituta an UDW8ft'8Dled invasion of the pthaey hi
vioilltion of the Niulb 'sud Fourleenlb 'Amendmeote.
t"
, , .
, M.arriage between two is, jr' persona! affair, Oll&
",,, whicll the state may or, ellc\llI1ber only when
is a compelling reason' to' do, 'so. Mar'rlage and marital
privacy are risllts protected by the Ninth
I, '
Amel1illlleDt as wen ai",tlie, Fourteentti Amendment due
proee8ll cl.&use. By not allow,ing appellants the legitimacy
of their marriages. the' st.,te' is tllem this buu:
rigbt and unlawfully medUluig in tlleij: privacy.
To hold that a light 110 and
so deep-rooted in 9!lt" ,lIociety &1;' tbe right of privacy
in murlage maybe..,iof,inged liecause that right Is
not guaran.ted in so' many '\Vords'.by tlle first eigbt
amendments to the is to ignore the Ninth
Amendment and to. live it nO'e!lect whatsoever.
Gri&wo/dv. U.S. 410';4fll-492 (Ooldberg, J..
concurring); see also, MiniM ,v. State:. Civil Serv
,ice Oommi.ssion., 312 F:SI1PP. 48a (N.D. Cal. 1970). Ac.
cordingly, MiDllesota's refullal,to legitimate the appellants'
marriage Inerely of tile, seX of tile 1l.1>llucants ie
..... ''"\',
The fact that tile parti. tb the dfSh'lld lWlIe sex marriage .&r"e
not bUmid from marril:l.BlI altfigethN" I, to tile constitu-
tionl1l i/Olue. Iilee Reed v. &wtL, IIll)''''; f..olillU 'V. VwgtlliG, supr/%;
v. PklriM., SIIpr3.
I
j
19
i
a denial of the right to marry and to privacy reserved i
to them of the Ninth and Fourleeoth Anum(\m.enbl, See

Grl8wolrl v. O()MlectiC'IIt, 81Ipra; Lovfng v. 388
i
U.s. 1 (1967); cr. Boddie v. O<mnectiC1.d, 401 U.S. 371
I
(19n). Indeed, it is the most fundaJmmtal invasion of
i
!
,
the privacy of the marital relationship for the state to
attempt to scrntinize the intemllI dynamics of that rela-
tionship. Absent a showing of compelling interest, or an
invitation from a party to the relationship, it is none of the
I
state's business whet.hol' the individua.ls to the relationship
intend to procreate or not. Nor is it t}le state's buein8sa to I
determine whether tIle parties intend to engage in Bex acts
'or any IJarticular sex acts. Cf., e.g., Gri8wola v. Oon.necti-
\
cut,
CONCLUSION
For the reasons eel forlh above. prohable jUl'iAdiclion \
should he Doted.
i
Respectfully 8ubUlitted,
R. MlO&Bto WE'I'iLPBBE \
Minnesota Civil Lioorties Union
2323 East Hennepin A venue 1
MiDneapolis. Minnesota SS413
\
i
I
LUN S. CASl'll1B&
I
i
!
1625 park Avenue
Minneapolis. Minnesota 55404
Atto,neys tor .J..ppeUant.s
,
!

EXHIBIT B
DON BROWNING AND
ELIZABETH MARQUARDT,
WHAT ABOUT THE CHILDREN?
LIBERAL CAUTIONS ON SAME-
SEX MARRIAGE, IN THE
MEANI NGOF MARRI AGE:
FAMI LY, STATE, MARKET, AND
MORALS(SCEPTER 2006),
EDITED BY ROBERT P. GEORGE
AND JEAN BETHKE ELSHTAIN
-'q
?,56 Notet
8 Acnrallr'/ir ncto'rturtoistso narrred by
(),rst<xr
Paris in a seminal
T
rticle of rB83:'Lancel6t
du Lrc: I-e Conte lr ln Chnr$h', Romaniit tz,45g-53q.
9
y'Lrrdrras
Capellanus,,l)r arlc boxesli arnanii,tr,Johrr
]ay
l'rrnyas'/he"4rt ofCoart$ lape,
Nerv York rq4r.
10 liexml l.)esi'e, Nerv Yrrrk and London
ry86',
Death^Desotetl I'Ieart: $ex and the .rartd
i4
l{agurl'[iittan nul ltolde, Nerv York aooj.
11 Thc reserch necessary to bmk up these claims
(at
least in the casc of England
and
\['ales) is available in Vllerie Riches, Srr Edururion or Intlutrittation: bora idnlogy
hat
triuupbed avaJixts, with additinna.l research lry Norman We.lls, London, F]mily and
Youth Conce,rn, aoo4. Americiurs rvill bc farnilar rvirh the rcsearch of Kay Hynowitz.
,and
others to tlre srrrue eflect.
12 lLichrrd Rorty, thhiming o*r Country: t"etlist Thougbt in T'uentiefii Century An*ha,
Nevr, )trrk eoor..
13 Still, it is uorth pointing out that societies rvhcrt marriage h*c broken dorur crr rvhere
children are routineliborn orrt ofwedlock are norv dying: in Europe hecause rhe chil&en
are not born, in suh-Saharan Africl bccause fhe childrcn die ol arns. In sr:cieties whcre
marriagc is the nonn and children n^re born in ryedlock, poprrlation is incrcasing, notabty
in rhe lslamic wodd,
14 See A1arr Sokal and
Jean
Bricmont, Intellecnml hnpasturer, London 1998 (publishcd
in
thc {.}SA 'a* Fashionuhle Nrtzrea^rc', NY rg98), tn Fredcriclt Cfirws, Porttlodenr .I?orr}. NY
:oor, Lr>ndon zooe.
15 I hnvc henefited grextl), f'rom Scana Sugnre's coffrmellts on an earlier draft of this p*-
P(r
z WhatAltoar the ChildrmT
1 ll'lax Weber, T'he Protestmt Etbi and tbe Sl,irit of Cnprr'zalt.vz
(New Yrrrk: Charles Scribner',s
Strns, i958), p. rBr;Jiirgcn Hatrerrnas,Thi:Th*r.y aJ'Cotnrnuti*tlire-Rationality II (Roston,
.i!Iass.: lJe*con Press, rg87, p.333.
? RalfI)alrrendorf, "A Precariorrs Balance: Economic C)pporruniry Civil Socieryi and
Priliticrrl L,iberty," T'lt Reyonsiac {hwmtnitjt (Stmmer 1995), pp, z$-32.
li llarbara Datoe Whitehead and l-)avid Prrpr:noe, "Whv itilen \{,brlt Comrnit: Statc of
Orrr Unions:'I'he Socid I lealth of $'lnnioge in ,tmerica eoor," (Nerv Brunswick, NJ':
Rutgers,l'he Nationnl X{ar'riage fr<rject, zoor), p. 8.
4 Gary Becke r,Tiutitr on thc lhni$
(Ctmhridge, Mast.: I-liuvrud Universirv Prcss, r99r),
pp'
156' J-1/.
5 Lbid.; Charles [{urray, Lwing Grcuttl (NervYrrb Basic Boc,ks, 1984). pp. rz9r33.
6 ltrr rer.iews of rhesc trends in tpth tlre [.].S. with its strong market economy antl Srveden
with its enrphasis on the state -supported lirnrily,, see David Popet\oet I)ist&lbin&the Mtt
(Nervlt'rk Aldim De
()nqtcr,
1988);AlrrnWolfe ,l{hox
K*per(l\erldcy
(X.:
lJuiversity
Notes
of C'rLlifornia Press, 1989).
7
Nancy Cott, Public ltaw; tt l{istory rtf Mnrriage and rbc Nation
(Cianrbridge,
Mass.:
Ila.rvard
(.lniversity
[]ress, zooo), p' rg$'
I [bid., p. r99.
g
William N. Eskridge, IlTualiry l\n*ice: Cioil Uniau nnd tbe F'umreoJ'Gay,ttg/z.r (Nerv
Xrrk Routledgc, zoot).
10 John
Witte, Frorn Saramutl to Contrail: Marri*ge, Religian, antl L,aru in tht llftstern
lmdition
(I.,ouisville, KY: Wcstnrinste-r-lohrt Knox Press, rg97), p' r'
11 IIor a philosophical and theological exposition o(thc unitive gtrods ofmaniage, st K*rol
\Mritl,a(the futurc PopcJohnPatl.u) bwam{.Resstonsibili4t(NervYork: Iirurat, Srrrus,
antl
()irorx,
r98r), pp.4o-44,
12 Drniel Cere,
uRe,lefining
Mariage and I'amily:
'l'rends
in North Ame:riran
Jurispnr-
dencer,"
(Itnrily Law Project: I'Iaryard llniversiqv, zoo3), p. 24.
13
'l'his
position is often associatcd with the organizations called Focus otr thc lramily and
Prornire Keep:rs. $ec
Jarnes
I)obson, Dn Do&son Answrt Your
Questions
about fu|ar-
riage axd $exuality
(Wheaton, II.,.:'Iyndale House Publishcrs, r97$,pp.ii,6s^7r;James
D<rbson rrrd
(lary
Bawr, Childrut arRisI' (Dallas,"l'X.: Word Publishing, r99o), p' 156;
'Iiny
Evrrns,l\ Man and l{is Integriry," Se<nn Promises of a Promise Keryr (CoLxad<r
Springs, Colo.: Focus on the l'amily Publishing,;994), p.7.1.
14 Marthn l'inern*n,
'ITx
lll*ion ol' Etlaality (Chic*rgo, IL.:
'l"he
l)niversiry of Chicago
Prcss, r99r) and The Mutuil Fami$ and Other
'l\oentittb Cenrary'Iiage,/ier (Ne:r.v lbrk:
Rs:tuledge, r9g5).
Ll
Jornthan
Ranch, 6'ay Ma niryc: ltlhy It is Goodfor Gay, Good-for Straigh*, ati GaodJ"or
Anrrica
(Ncw York Herrry Holt and Cnmptny, zoo4).
16 .iVIartin l)aly anr.l Mnrgo Wilson, "'Ihe Evolutionary Pslthology of Ivlarritge arrd Di-
vorcc,"
'llte ')its
that llind
(New Ytrrkr Aldine De Crulter, eooo), pp.9r-rro.
17 Aristcrtle, Po litis in
'l'he
llasic Wrdt ofAtritarlr (Nerv Yrrrk: Randnm I lcxrse, r94r), Bk,
l,ii.
18 Plato, fie7ral/rr
(Nerv l'orlc Brsic Btroks, Igds)) Bk. v, pnr
'46r.
19 Aristotle, Palirat, Bk. r, ii.
20 lbid.
2l'I'lrcrnrasAquinas,"sr.rpplernc.ttt,"lianma'I'heologinrt{l.,ondon:TandT.trV*shbourne,
r9r7),
Q4r,A.
r.
22 lbid.
23 ltlid.
(f
4a,
A.3.
24 lbr a rliscussion of how metaphors of charncteridnB the rrltimate context of expericr'rce
unwittingly perv*de the soci'al $:iences, see Don Browning;, Religiou; Thought and the
Mtttlu'n Psydtatogles
(L{inneapolis, MN.: Fbrtress Press, 1987, zoo4).
2.5 A<1uirras, "supplernent," $wnm a'l')xolagiea t t t,
Q4r,
A. I.
26 lbid.
2)/
258 Notet
27 lbid.
28 For a summary of these forrr conditions as they can be found in the literarure of evolu-
tionary psiahology, sce Don Browning, Bonnie Miller-Mclemore, Pamcla Couturs,
Bernie Lyon, rnd Roben FrankJin, Fron Culnov Wars to Commot Grotnd: Religion
and the Amoican Fami$ Debate (Louisville, KY: WcstminsterJohn Knox, 1997, zooo),
pp. rrr-rr4. See also Don Brorvning, Marriage and Moderniz,ation: How Globalization
Threatens Matriage ard Wbat to Do about It
(Grand Rapids, MI: Wnr. B. Eerdmans,
2oo3)r
PP.
ro9-rrr.
29 Aquinas, "Supplement," .Sz mma Theologica, ttr,
Q-4t.
30 Aquinas, Summa Theologica, It-tt,
Qro,
Aru.
3l Rerum Nooarum,in ProdaimingJustice and Peau: Popal Docunenrry'arz Rerum Novarum
througb Centisinrus Annus, Michael Walsh and Brian Davies (eds.) (Mystic,
CN:
'lwenty-Third
Publications), pera. rr and rz: Pius x4CastiConnubii(NewYork, NY:The
Barry Vail Corporation, r93r) and Pius xr,
Quadtagerimo
Anno,The Papal Encyclicals
(McGrath, r98r).
32 Mary Midgley, Beast and Maz (Ithaca, NY: Cornell University Prcss, 1978).
33
Jean
Pofier, Natural and Dhtine Lau (Ottawa, Ontario: Saint Paul University Press,
rgggl.
34 Stephen Pope, The Eaohtion of Altrukm and tbe Ordering of Lwe (Washineton,
D.C.:
George town University Press, 1994).
35 Larry Amhaft, Darwinian Natarul Rigbt (Albany, NY: State University of NewYork,
r99s).
36 Lisa Sowle Cahill, Sex, Gender snd Cbtistion Etbics (New York Cambridge Urriversity
Press, 1996).
37 Midgley, Beast ond Man,p.9r.
38 Rauch, Gay Marriage, p.
52.
39 Ibid., p.4u.
40 lbid.,p. ze.
41 lbid.,p. ro8.
42 Ibid., p. rrr.
43 Goodridgctt.De?artmentofPablicllealth,Tg&N.E.zd94r(Mass.zoo3),rnajorityopinion,
P'r,5'
Ibid., p.5.
Ibid., p. r4.
Ibid., p. ro.
Andrew Sullivan, Virtually Notmal (New York: Vintage Books' 1995); Evan Wolfson,
"All Together Now," Marriage and Samc'Sex {Jnions: A Debatc, ed. by Lynn Wardle,
Mark Strasser, William Duncan, and David Coolidge (Westport, CT Praeger, eoo3),
pp.3-Io.
Cere,"RedefiningManiageand Family:Tiends in North Ar:nericanJurisprudence,"p.24.
44
45
46
47
r
Notcs
z5g
49 Thc lJnired Natiorrs Ct.rnvention on the Rights o( the Child, Arride
7.
50 Eliz"lhe th l\ilarquardt! lbrthcorning lmok is bascd nn a ncw', national sftrdy that irrcludes
n nationally re.prcsentative tdephone strrvey ofyoung adults tronr divorced rrrd intact
firrnilies, condufled with I)r Nopal Gle nn at the University o{'Ie.xas-Arrstin. See Brlarrer
Tioa l4torldr:The Inner Linet oJ'Children afDiuorce (Cnrwn
Puhlishcrs, Septeinber zoo5)
AIsr> see wr.wv-americrnvidues.org, scroll donn to "children of divorce" and be slrre to
click on "archives" in that scction as rr'ell.
5l Goodridgt r. DEartmenr oJ'Publie l$altb,yp. ro-tt.
52 lvluquardt asks whether children o(sanre-s'ex couples could trc dl rh.*t dillbrent lirrrn
chiklren in ev,:ry <;tlter alternative fanrily form rve",e tricd, in "Gay Maniage: A firre
icier in pr:inciple, br:t whet alnut the kttk>." ClLi*grt
"fr.iburc
(December
7,
roo3), p.
4.
AIso rwailable on dre wlr ramcrknnr,irlucs.org rve.bsite.
53 l.'incman'"- mo$t mxturc theory of dependenry can be found in hcr recernt book, 7?r
ilaronony Mylh:ATheory of tlEeideaiy (NewYork:The
New Press, zoo4).
54 llirreman, Tlte Neatared Mathcr and tlx Sexaal ltnnily,pp, r43^r44,
-15
Ibid., p. zz9.
56 Ibiel., pp. r64-r6(i.
57 RirhardPosner..!enazdrtearaa(Carirbridge,ilIass.:IlanardUnivenityPress,:99r),
1:.
398.
58 DarirlCreenbery,TfuCot*rnnrionof[{onnrxaality(Chicago:'I'hetJniveniryofChicago
Press, rg8$).
59 Rauch, G'ay Mnrriagt, pF^ r?9-rlo,
60 lbid., p.88.
61 Richard Crtldsteitr, Tbt Auack
Qaets:
I.iberal Sxiety and tlsr Cay Righr (Nerv )'rrrk:
rooz), pp. j,5,5o-56^
Miclraet Wirrner (ed.), tsaar of tl
Queer
l,lnnet (l\,linneqnlis,
MN.:
Universiry trf .IVlinnesota Press, rggj), p. xiii, and IVichael Wirrner, The
'l'rrtuble
uitl
Normal: Sex, Politirs, and the Ethis
E Que*
L{e (Crunbridge,
Mass.: Hanard University
Press, rq99), pp.9, rl.
62 \try'arner, 7h:'t'rodtle uitlt Nonnal, pp, 88-89.
63 Don Brnrvrr ing;, iion Cultun Wars to Comnon Ground: Religion and the ,Lnxricat l;attily
64
65
6b
D$ate,pp.37-t8,
Ihid., p. r.
lbid., pp. 287-288.
I;br a fuller discr,rssion of the practic,al propos.rls corruecred wirh criticd frmilisnr, see
Brorvning, et.al.
,
Fran Cabure l,lars to Conmon Ground,pp,3o7-334; sec aisq Don Brown-
ing and Cikrria Rodrigur.z, Rrueavixg rhe Sodal'Ibpestry:Tbward a Puhlic Phihxophy and
Poliqy rl'Ihtniliu
iNewlirrkW.
\{, Norton, uooe), esp. chpts.
(r-8.
lirr a discussiol about the necd for an interfaith tli'alogrre ol the reconstructiorr cd:rnar-
riagc, see l)on lirowrring, Marirgt ttnd Moderuizatian,
?p.221-24+.
67
26o Notes
3
Cbanging Dynanics of tlse Family
1 Alfred D. chandler,Jr.
,Tbe
aiible band : tbe nanageria! rcoolution inAmerimn business,
Cambridge, Mass. : Belknap Press, rg77.
2 The concept of Rhinehnd capitalism as a special path was popularized by Michel Albert,
Capitalin aet:sw Capitalim, London :Whurr, r99j (original
French edition r99r).
3 Peter Paync, "Family business i, Britain: An historical and analytical survey", in (eds.)
A-kio okochi, shigeaki Yasuoka, Familybatinut in tbeeraofindustrialg.rwtlt; its ortner-
slip ond management : proceedings of the fiji
(knfercnce.
Tbe International conferencc on
Businest Hitory, ro, To[<yo: Univenity of'Iblgo Press, 1984.
4
JeffreyFcar,
"AugusrThpsen and Gcrman Steei', in (cd.)Thomas
K. McCraw, Creating
,t odern ca?itolistn: Hou entre?fttrcurs, companies, andcounn'iet n'izrmphcd in three industrial
retolutiongCambridge rrnd London: Harvard University Press, rg97,pp.rg5-zz6
5 See Edward S. Hcrman, Corporate Control, Corparate Poue6 Cambridge: Cambridge
University Press, r98r, p.
352.
a
}::
Goody, The Eatt in Wrest, Cambridge: Cambridge Uuiversiry Press, 1996, pp. r99,
7 See for instance the entertairring rccent book by Adarn Bellow, In hnise of Mpotkm,
New York Random Housc, zoo3.
8
Joha.nn
Wolfgang von Goethe,Goethes Werke beraasgegeben intAtfirage dcr Grossberzogin
Sophie aon Eachyn, Tag- und
Jabres-H$e
ah Ergr;nzung meiner sonstigen Bekenntnisse.
[t7ag-tSo6J,
L Abtbeilang;35. Band,Weimu: H. B<ihlau, rgg2,pp.
57-59 G79i.
9 Cited in Rend Sldillot, Deax cent cinguantc flns d'irdustrit, p. rzz.
10 See Shigeaki Yasuoka, "Capital ownership irr family companies:
Japanese
firms com-
pared with those in other countries", in (eds.) AJ<io Okochi, Shigeaki Ye*oka, Fanily
bainess in tbe era of itdustrial grouth : i* ousnersbip and management :
?roceedit
gt of tbe
fiji Cotfercnce. The Internatioxal Confetence on Busitess History, ro, Tokyo: University
ofGkyo Press, 1984, pp. r-32.
11 Notably those in Gennany directed by Lorhar Gall and byJttrgcn Kocka.
12 See the model evolved byYoram Ben-Porath, "The F-connection, families, friends and
thc organization of exchange,' Population Deaelopt et t Reuiew,6 (r98o), pp. r-3o.
13 Thrun Kl-ranna and Krishna Palepu,"Policy shocks, market intermediaries, and corporate
strateg'y:
'I'hc
evolution of business groups in Chilc and India",Journal of Economics
and Management Strategy 8/2, 1999, pp. 271-3ro.
14 See for instance the scssion of the Intemational Economic History in Budapest, r98z:
(ed.) Leslie Hannah, From Fami$ Firm to Professional Management: Stractwe and Per-
foruance
of Business Enterprix,Brrdapest: A-kadimiai Kiad6, r982.
15 Fimnrial T'ines,Feb.
3,
too3: "The Complex Evolution of Family A-ffairs" (p. 6).
16 Frddiric Lernaitrc, "La Francc: championnc du capitalisme familial", Le Monde, Aprr),
18, zoo3.
r
Notet
17
l\'{ar* Faccio, Lary I{.P l"ang,lihe ultimate ownership ofwestern Europe*n ceriDm-
iions,Jouna/ of Finandal Erononits 65, zoor, p.
393.
18 Knut Borchardt, "I)cr unrerrrrrhrncrhaushalt 'aIs wirtschaftsbetricb", in (cd.)
"lilrrr:rnn
Brrdrlensicg, Ililla l{*gl: Das trl&hnbtus Knrl>p irt lissrn, Berljn; Siedler, tgl)4,y. tz.
19
It.Passorv,'Aktiengesellschrftcn',in(cds.)l,rrdwigElsrer,Adoli'wetrei;IiiicclricSlvie:seq
tlnndwdrterbuch der Staa?ui.wenscba/lttt,4th ed.,Jenrr:
(i.
I.'ischcr, r9rj,
yol.
I, p. r34-
20 Picrre Bounlieu, I\'Ionique dc saint Marrin "Le parronat," in tLu* de la Rcchenhe *r
seitxtcs smials zo-:r, rg73, p. 17.
2l Fbnily B*incs, Butines lhnilics, I larvrrd tlniversity, Presso eoo5.
22
'I'homas
N{aldrus,.z/l Esut1, on the Priaeiple of Papttmiox,reprintc<i
l{trnxrndsq,orth,
rg7o,1tp. 67, tt4.
23 Ibid., rrS, r4z.
24 T'be 1'imar (L,oudor),
Seprclnber rfi, :oo4; linttncialT'int:.s, Scprember
3o,
roo4.
25 Larvr'ence Strrre, "P'assiouate Attachments irr thc west in llistcuical
perspcctiye",
in
(ed;.) willard cqvlin and tithe n Person, l>atsionare,4uachueutt: Thin&ing Ahotrt l.,orte,
NervYork:"ftre Free Prcss, 1988, p. 19.
2ti
Qrored
in Sue shelletbarger,'hncl Brrhy lHakes Sttess", wail stre*Joarzad I)ccenrber
16, roo4, p. Dl.
27 Hendrik Harr<rg, "what ()ny
Maninge tnches Abour the History of r\4amiagc", I lis-
tory N*',s N*tvork, April .5, 2004. hqr:/lwwr+'.hur.us/ardcles/4400.htm1
28 Fyrxlnr Dotoyevsk"y (trnnsl. n:rvid Magarsh ack),
"lht
Brwhers Kara*azov,Hamroncl-
sworth: Per8lritr, t958, p. 878.
4
Unilateral I)iwrce
I'rrr an elcgant exposition ol the pre-pol-itical cha-rircte, of marriage, sce seana sugrue,
"Sofi Dcspotism rnd Sarnc-Sex tsI;uriage," this voiume.
Adarn Smith, ,/a lnguhy iuo the Nahov aud Ottuse aJ' the trl/catth al'Natbnr, etliterl b-y
EtJrvin Canrra,
(Chicago:
I.Irriversiry of Chic*gn Press, 1976), Vol. I,l}:ok r, Chrpter II.
bs.'z).
'I'hc
caus'.rl factor in l,omcnt rttachrnenr appeffs to ber th" lr,r.rrrou* oxltrxin,
g,hich
txrnrls a wnmmr hoth to her sex p*rtricr a'd to hcr ofiipring. The title of the classic
prrper in the field descrihes the hasir: point: "1'he Role of o.xytr:cin Reflexcs in'flrree
lnterpersonrri Rcfroductive Acls: C)tritr,rs, Birrl, and Breirst Fecdirrg;,"by Niles Nervron, in
Clinical Psydtotteurocniorinology inxpt.oduttiot,L Crrren;ra,l.l Pancher:i,;rrd T.. Ziclrella,
cds. (i.-crvY.ork:
Acade mic Pre.ss, r97*), PP
4rr-rB^
c)n the attachrvre nt of m,rtlrers to their
babies, see generallv. stev'en E. Rhoads, Thkbtg sex Di{ftreacc seriourry,{san Francisco:
Encounter Books, zoo4) pp. rro- zzz. An women's clemand for stabilit-y ond depcnd,
ability, see D;rvid IVL Buss,Tbe Evolution of Desir* Strategies of l.lwnan Mathry,(Nen*
York Basic Books, r99/
Fp.lr-34"
On the attnchrnent of u.o*en to their sex putuers,
see generrrlll; lllroads,
'Ihking
Eex Llifriunet Seriow/1,pp
46-75.
z6r

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