Vol 98364

1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.,

Plaintiffs
v.

JAMES D. CALDWELL, et al.,

Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)

JUDGE MARTIN L.C. FELDMAN
MAGISTRATE MICHAEL NORTH

REF: ALL CASES

BRIEF FOR AMICUS CURIAE PROFESSOR HELEN M. ALVAR

COMES NOW, Amicus Curiae, Helen M. Alvar, via undersigned counsel, who seeks
leave of court to file this brief on behalf of the Defendants.
INTEREST OF AMI CUS CURI AE
Amicus is a law professor at George Mason University Law School who has written
extensively about family law in the United States, with a special focus on issues involving
legislative and judicial treatment of marriage and parenting. She is committed to the public
interest and in particular to the marriage and parenting circumstances of the least privileged
Americans. Based upon her research into the history of constitutional marriage law and the
evolving meaning of marriage among less-privileged Americans, she believes that states have
a substantial interest in supporting and encouraging marriage among opposite-sex couples in
order to highlight the procreative aspects of marriage, and in declining to extend similar
recognition to same-sex couples.
ARGUMENT
I. The State Has a Legitimate, Even Compelling Interest in Singling out Opposite-sex
Marriage for Protection, Sufficient to Satisfy the Equal Protection Clause.

Case 2:13-cv-05090-MLCF-ALC Document 89 Filed 05/10/14 Page 1 of 25

2
Plaintiffs in these consolidated cases claim that the Equal Protection and Due Process
Clauses of the Fourteenth Amendment require Louisiana to recognize out-of-state marriages
between persons of the same sex. In addition to the Defendants arguments, this amicus adds that
this Court should recognize that states have governmental interests sufficient to justify their
recognizing opposite-sex but not same-sex marriages.
States are constitutionally permitted in legislation to classify people into groups that
possess[] distinguishing characteristics relevant to interests the State has the authority to
implement.
1
Even more relevant to the question of same-sex marriage, this Court has affirmed
the constitutionality of state classifications where recognizing or benefitting one group
promotes a legitimate governmental purpose, and the addition of other groups would not.
2
As
described in Section III below, recognizing same-sex marriage as the institution defined by
Plaintiffsas an adult-centered, emotion-based accomplishmentwould not only fail to
promote the governments substantial interest in opposite-sex marriages, but contradict that
interest in ways likely to harm the segment of society already suffering the most from a retreat
from marriage.
There is no basis for the conclusionas, for instance, the Ninth Circuit reached in the
Perry casethat defining marriage as a man-woman union operates with no apparent purpose
but to impose on gays and lesbians . . . a majoritys private disapproval of them and their
relationships.
3
Increasingly, courts have reached this erroneous conclusion based in part on the

1
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quotation marks omitted).
2
Johnson v. Robison, 415 U.S. 361, 383 (1974).
3
Perry v. Brown, 671 F.3d 1052, 1095 (9th Cir. 2012). The recent district court decisions invalidating
state marriage laws have reached similar conclusions.

3
fact that states ha[ve] never required that individuals entering a marriage be willing or able to
procreate.
4
Yet the lack of a pre-marital procreation test does not undermine the legitimacy of
the states classifying couples as same-sex or opposite-sex, and offering marriage only to the
latter.
The Supreme Court has repeatedly stated that [t]he rationality commanded by the Equal
Protection Clause does not require States to match . . . distinctions and the legitimate interests
they serve with razorlike precision
5
or mathematical nicety.
6
Rather, classifications that
neither involve fundamental rights nor suspect classifications are accorded a strong presumption
of validity.
7
For such classifications, the government is not required to actually articulate at
any time the purpose or rationale supporting its classification,
8
and a court should uphold it
against an Equal Protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.
9
Moreover, even if intermediate scrutiny
applies (as for gender-based classifications) an exact fit is not required. Intermediate scrutiny
mandates only a substantial relation between the classification and the underlying objective,

4
See, e.g., Perry v. Schwarzenegger, No. 3:09-2292-VRW (N.D. Cal.), Findings of Fact and Conclusions
of Law 60, ECF No. 708.
5
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 63-64 (2000) (age discrimination action brought by university
employees).
6
Dandridge v. Williams, 397 U.S. 471, 485 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220
U.S. 61, 78 (1911)).
7
Heller v. Doe, 509 U.S. 312, 319 (1993).
8
Id. at 320 (quoting Nordlinger v. Hahn, 505 U.S 1, 15 (1992)).
9
Id. (quoting Federal Commcns Commn v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993)).

4
not a perfect fit.
10
None of our gender-based classification equal protection cases have required
that the statute . . . be capable of achieving its ultimate objective in every instance.
11

States rationally draw a distinction between same-sex and opposite-sex couples that is
rationally and substantially related to Louisianas interests in preserving the link between sex,
marriage and procreation. According to the Census Bureau, by the age of 44, over 80% of
married couples have children in the household. This figure does not even include couples whose
children are older or have moved away from home.
12
Given the invasions of privacy that would
certainly be involved in ascertaining couples procreative willingness and capacities prior to
marriage, the possibility of unintended pregnancies, and couples changing intentions, it would
be impossible for states, effectively, to determine the procreative potential of any particular
opposite-sex couple. Drawing a line between same-sex and opposite-sex couples is rationally
related to the states interests in maintaining in the public mind the links between sex, marriage
and children.
II. The Supreme Court Has Regularly and Frequently Recognized with Approval the
Importance of States Interests in the Procreative Aspects of Opposite-sex Marriage.

Supreme Court decisions from the early nineteenth to the late twentieth century have
repeatedly recognized, with approval, states interests in the procreative features of marriage:

10
See Califano v. Webster, 430 U.S. 313, 318 (1977) (per curiam) (upholding statute providing higher
Social Security benefits for women than men because women on the average received lower retirement
benefits than men; id. n.5 (emphasis added)).
11
Tuan Anh Nguyen v. Immigration and Naturalization Serv., 533 US. 53, 70 (2001); see Metro Broad.,
Inc. v. Federal Commcns Commn, 497 U.S. 547, 579, 58283 (1990), overruled on other grounds,
Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 227 (1995) (holding that classification need not be
accurate in every case if, in the aggregate, it advances the objective).
12
U.S. Census Bureau, Family Households With Own Children Under Age 18 by Type of Family, 2000
and 2010, and by Age of Householder, 2010, The 2012 Statistical Abstract: The National Data Book,
Table 65, http://www.census.gov/compendia/statab/2012/tables/12s0065.pdf (last visited May 9, 2014).

5
childbirth and childrearing by the adults who conceived them, and the contribution of that
childrearing to a stable democratic society.
The Supreme Court has written a great deal on the nature of the states interests in the
context of evaluating state laws affecting entry into or exit from marriage, or concerning
parental rights and obligations. Typically, these statements recognize that states are vitally
interested in marriage because of the advantages not only to adults but also to children and to
the larger society. Children replenish communities, and communities benefit when children are
reared by their biological parents because parents best assist children to grow to become well-
functioning citizens. The Court does not give special attention to adults interests nor accord
them extra weight. Nor are the interests of some children vaulted over the interests of all
children generally.
The material below considers the various manners in which the Supreme Court has, in
the past, discoursed approvingly about marriage and parenting as expressing states interwoven
interests in the flourishing of adults, children, and society.
A. States have substantial interest in the birth of children.
While it is difficult to disentangle completely the Supreme Courts language recognizing
a legitimate state interest in the very birth of children from the states interest in the healthy
formation of children within marriage, still it is possible to discern it.
In the case refusing to allow polygamy on the grounds of the Free Exercise Clause,
Reynolds v. United States, this Court explained states interests in regulating marriage with the
simple declaration: Upon [marriage] society may be said to be built.
13
Nearly 100 years later in

13
98 U.S. 145, 165 (1879).

6
Loving v. Virginia, striking down a states anti-miscegenation law, the Court referred to marriage
as fundamental to our very existence and survival, necessarily endorsing the role of marriage
in propagating society through childbearing.
14

Even in cases where only marriage or childbearing was at issue, but not both, the Court
has referred to marriage and childbirth together in the same phrase, nearly axiomatically. For
instance, in Meyer v. Nebraska, which vindicated parents constitutional right to have their
children instructed in a foreign language, this Court referred not merely to parents rights to care
for children but to citizens rights to marry, establish a home and bring up children.
15
In
Skinner v. Oklahoma ex rel. Williamson, concerning a law punishing certain classifications of
felons with forced sterilization, the Court opined: Marriage and procreation are fundamental to
the very existence and survival of the race.
16

Similarly, in Zablocki v. Redhail, which struck down a Wisconsin law restricting
marriage for certain child support debtors, the Court wrote: [I]t would make little sense to
recognize a right of privacy with respect to other matters of family life and not with respect to
the decision to enter the relationship that is the foundation of the family in our society.
17
As in
Loving, Zablocki reiterated that marriage is fundamental to our very existence and survival,
18

and recognized, additionally the right to deci[de] to marry and raise the child in a traditional
family setting.
19

14
388 U.S. 1, 12 (1967).
15
262 U.S. 390, 399 (1923).
16
361 U.S. 535, 541 (1942).
17
434 U.S. 374, 386 (1978).
18
Id. at 383.
19
Id. at 386.

7
The 1977 opinion in Moore v. City of East Cleveland, announcing a blood-and-marriage-
related familys constitutional right to co-reside, nonetheless referenced the procreative aspect of
family life stating: the institution of the family is deeply rooted in this Nation's history and
tradition. It is through the family that we inculcate and pass down many of our most cherished
values, moral and cultural.
20
Similarly, in Parham v. J.R., a case treating parents rights to direct
their childrens health care, the Court stated: Our jurisprudence historically has reflected
Western civilization concepts of the family as a unit with broad parental authority over minor
children.
21

B. States have substantial interest in the way marriage socializes children.
A second prominent theme in the Supreme Courts prior cases touching upon marriage is
the unique importance of the marital family for forming and educating citizens for the
continuation of a free, democratic society.
Preliminarily, in cases in which natural parents interests in directing childrens
upbringing have conflicted with the claims of another, the Supreme Court has approvingly noted
the importance of the bond between parents and their natural children. This is found in its
observations that states presume that biological parents natural bonds of affection lead them
to make decisions for their children that are in the childrens best interests. Statements in this
vein have been made in Parham v. J.R. (historically [the law] has recognized that natural bonds
of affection lead parents to act in the best interests of their children
22
), in Smith v Organization
of Foster Families for Equality & Reform (families blood relationship forms part of the

20
431 U.S. 494, 50304 (1977).
21
442 U.S. 584, 602 (1979).
22
Id. at 602.

8
importance of the familial relationship, to the individuals involved and to the society
23
), and in
the grandparents rights case of Troxel v. Granville (there is a presumption that fit parents act
in the best interests of their children
24
).
Moreover, for over 100 years, the Supreme Court has reiterated the relationship between
marriage and childrearing for the benefit of a functioning democracy. In Murphy v. Ramsey, for
example, the Court opined:
For certainly no 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 civilization; the best guaranty of that reverent morality
which is the source of all beneficent progress in social and political improvement.
25

The 1888 decision of Maynard v. Hill referred to marriage as having more to do with the
morals and civilization of a people than any other institution, and thus marriage is continually
subject to the control of the legislature.
26
And in 1943, in the course of an opinion affirming
parents authority over their children within the limits of child labor laws, the Court explicitly
linked good childrearing practices to a healthy society, saying: A democratic society rests, for
its continuance, upon the healthy well-rounded growth of young people into full maturity as
citizens, with all that implies.
27

Reflecting upon states continual interest in marriage legislation, in a case concerning the
affordability of divorce process, Justice Blacks dissenting opinion (objecting to the expansion of

23
431 U.S. 816, 844 (1977).
24
530 U.S. 57, 68 (2000).
25
114 U.S. 15, 45 (1885).
26
125 U.S. 190, 205 (1888).
27
Prince v. Massachusetts, 321 U.S. 158, 168 (1944).

9
the contents of the federal Due Process Clause) in Boddie v. Connecticut, asserted that: The
States provide for the stability of their social order, for the good morals of all their citizens and
for the needs of children from broken homes. States, therefore, have particular interests in the
kinds of laws regulating their citizens when they enter into, maintain and dissolve marriages.
28

In the 1977 case in which the Supreme Court refused to extend equal parental rights to
foster parents, the court wrote about the relationships between family life and the common good
stating: Thus the importance of the familial relationship, to the individuals involved and to the
society, stems from the emotional attachments that derive from the intimacy of daily association,
and from the role it plays in promot[ing] a way of life through the instruction of children, as
well as from the fact of blood relationship.
29

As recently as 1983, in the single fathers rights case, Lehr v. Robertson, the Supreme
Court referenced the social purposes of the family quite explicitly in terms of states legitimate
interest in maintaining the link between marriage and procreation. Refusing to treat an unmarried
father identically to a married father with respect to rights concerning the child, the Court wrote:
marriage has played a critical role . . . in developing the decentralized structure of our
democratic society. In recognition of that role, and as part of their general overarching concern
for serving the best interests of children, state laws almost universally express an appropriate
preference for the formal family.
30

28
401 U.S. 371, 389 (1971) (Black, J., dissenting).
29
Org. of Foster Families, 431 U.S. at 844 (citation omitted).
30
463 U.S. 248, 257 (1983).

10
In summary, it is fair to conclude, upon a review of the Supreme Courts family law
jurisprudence, that states interests in the procreational aspects of marriage have been both
recognized by the Supreme Court and affirmed to be not only legitimate, but essential.
C. An adult-centered view of marriage overlooks children.

Undoubtedly the state also values adults interests in marriage: adult happiness, mutual
commitment, increased stability, and social esteem. Yet a view of marriage that focuses solely
on these adult-centric interests is incomplete and denies the Supreme Courts decisions affirming
the states interests in procreation and healthy childrearing by stably linked, biological parents. It
also risks institutionalizing, in law and culture, a notion of marriage that is at the core of an
alarming retreat from marriage among disadvantaged Americans. (See, infra, Section III.).
Same-sex marriage proponents take great pains to excise references to children when quoting the
Supreme Courts family law opinions. In their Complaint and Trial Memorandum in Perry, for
example, the plaintiffs referenced from Loving v. Virginia only the language about marriage as a
basic civil right[] of adults, or a vital personal right[] essential to the orderly pursuit of
happiness by free men, leaving out Lovings immediately adjoining reference to marriage as the
fount of society.
31
They similarly quoted Cleveland Board of Education v. La Fleur
32
without
noting that the freedom at issue was a married teachers deciding to bear a child.
33

Perhaps the most egregious example in Perry was the selective quotation from the
Supreme Courts opinions addressing the meaning of marriage in Turner v. Safley, the case in

31
Compl. for Declaratory, Injunctive, or other Relief 1, E.C.F. No 1; Pls. & Pl.-Intervenors Trial Mem.
3, ECF. No. 281. As noted, Loving concludes that marriage and family are fundamental to our very
existence and survival. 388 U.S. at 12.
32
Trial Mem. 34, ECF. No. 281 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974)
(personal choice in matters of marriage and family life)).
33
414 U.S. at 640.

11
which the Supreme Court held that certain prisoners were required to have access to state-
recognized marriage.
34
There, the plaintiffs cited Turner for the proposition that civil marriage is
an expression . . . of emotional support and public commitment, and an exercise in spiritual
unity, and a fulfillment of ones self.
35
The district courts Findings of Fact and Conclusions of
Law did likewise, selectively quoting only the adult-related aspects of the Supreme Courts
statements about the meaning of marriage and excising references to procreation.
36

However, Turner explicitly acknowledged, in two ways, both the adults and the
procreative interests in marriage. First, Turner concluded that adults interests were only
elements or an aspect of marriage,
37
but that marriage had other incidents that prisoners
would eventually realize, referring specifically to consummation, i.e. heterosexual intercourse
with a spouse.
38
Second, Turner distinguished the situation of prisoners who would someday be
free, from that of prisoners whom a state refused to permit to marry, on the grounds that life
imprisonment would foreclose the ability to parent and rear children.
39
Turner noted that in
Butler v. Wilson,
40
the Supreme Court had summarily affirmed the case of Johnson v.
Rockefeller,
41
in which inmates imprisoned for life were denied marriage, in part upon the
rationale that they would not have the opportunity to procreate or rear children. Said the Johnson
court: In actuality the effect of the statute is to deny to Butler only the right to go through the

34
482 U.S. 78 (1987).
35
Trial Mem. 6, ECF No. 281 (citing Turner v. Safley, 482 U.S. 78, 9596).
36
See Findings of Fact 110, ECF No. 708.
37
482 U.S. at 9596.
38
See id. at 96.
39
Id.
40
415 U.S. 953 (1974).
41
365 F. Supp. 377 (S.D.N.Y. 1973).

12
formal ceremony of marriage. Those aspects of marriage which make it one of the basic civil
rights of mancohabitation, sexual intercourse, and the begetting and raising of childrenare
unavailable to those in Butlers situation because of the fact of their incarceration.
42

In reality, proponents of same-sex marriage ask federal courts to insist that every state
recognize a new understanding of marriage. This new understanding would signify that what the
state values about sexually intimate couples is their emotional happiness and willingness to
commit to one another, exclusively, for a long time.
43
In the case of same-sex couples, marriage
would additionally connote that the state, and society, are sorry for past discrimination and
stigmatizing of gays and lesbians. However, this understanding completely disregards the
procreative aspects of marriage which the Supreme Court has recognized as essential. At the
same time, it paints a picture of marriage closely associated with a retreat from marriage among
the most vulnerable Americans.
Notably, proponents of same-sex marriage acknowledge the power of marriage laws to
affect citizens perceptions and behavior. Indeed, a change of perceptions and behaviors, is
precisely what plaintiffs generally seek in bringing suit, and what courts have sought to achieve

42
Id. at 380 (citation omitted).
43
See Compl. 2, 7, ECF No. 1; Findings of Fact 67, ECF No. 708; Perry v. Brown, 671 F.3d 1052, 1078
(9th Cir. 2012). The Goodridge court and well-known same-sex marriage advocates urge a similar
meaning for marriage. See, e.g., Andrew Sullivan, Here Comes the Groom: A (Conservative) Case for
Gay Marriage, New Republic (Aug. 28, 1989), http://www.tnr.com/article/79054/here-comes-the-groom#
(describing marriage as a deeper and harder-to-extract-yourself from commitment to another human
being).

13
in upholding similar claims.
44
Plaintiffs in these cases specifically urge that marriage not be
understood to imply procreation.
There is only one group of children who consistently feature same-sex marriage
advocates arguments: children currently being reared in same-sex households. These advocates
claim that these children will be helped, indirectly, via the social approval that would flow to the
same-sex partners in their household were their parents married. Even this brief argument
mentioning children, however, is flawed.
First, it is not at all clear that granting marriage to same-sex partners equates with
bringing marriage into the lives of such childrens parents. Exact figures are unknown, but it
appears from at least one nationally representative sample of children who lived in same-sex
households before the age of 18,
45
and a recent analysis of the U.S. Census,
46
that the majority of
children were conceived in heterosexual relationships and are presently living with one
biological parent and that persons same-sex partner. Tremendous uncertainty, therefore,
surrounds the questions of whether state recognition of same-sex marriage would bring married
parents to a large number of children and whether social approbation would follow.
Second, the jury is still out on whether parenting in a same-sex household advances the
states critical interest in childrens, and therefore societys formation. Recently, a peer-
reviewed journal issued the first nationally representative study of children reared in a same-sex

44
See, e.g., Perry v. Brown, 671 F.3d 1052, 1078 (9th Cir. 2012) (suggesting that the states designation
of a relationship as a marriage, by itself expresses validation, by the state and the community, and is
a symbol . . . of something profoundly important).
45
Mark Regnerus, How different are the adult children of parents who have same-sex relationships?
Findings from the new family structures study, 41 Soc. Sci. Research 752 (2012).
46
Garry J. Gates, Family Focus onLGBT Families: Family formation and raising children among
same-sex couples, National Council on Family Relations Report, Issue FF51, 2011.

14
household.
47
These childrens outcomes across a host of emotional, economic and educational
outcomes were diminished as compared with children reared by their opposite-sex parents in a
stable marriage. The author of the study acknowledged that the question of causation remains
unknown; however, the childrens outcomes might indicate problems with same-sex parenting,
or even problems with family structure instability, given that most children were conceived in a
prior heterosexual relationship by one of the adults later entering a same-sex relationship. The
latter possibility raises further questions about the overall stability of same-sex couples, and
about the role played by bisexuality. This is relevant to child well-being given that a consensus is
emerging among social scientists that many poor outcomes for children might be explained by
instability in their parents relationships.
48

Importantly, same-sex marriage proponents attempt to redefine marriage to excise
childbearing and childrearing comes at a time in history when new empirical data shows that
childbearing and childrearing in marriage is threateneda threat disproportionately visited upon
the most vulnerable populations. (See Section III.) States have responded to the data. In fact,
over the past 20 years, the legislatures in all 50 states have introduced bills to reform their
marriage and divorce laws precisely to better account for childrens interests in their parents
marriages.
49
The federal government has done the same, particularly via the marriage-promotion
sections of the landmark welfare reform law passed in 1996 by bipartisan majorities, and

47
See Mark Regnerus, supra.
48
Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the United States:
Demographic Perspectives and Implications for Family Policy, 26 Law & Policy 87, 94 (2004).
49
See, e.g., Lynn D. Wardle, Divorce Reform at the Turn of the Millennium: Certainties and Possibilities,
33 Fam. L.Q. 783, 790 (1999); Karen Gardiner et al., State Policies to Promote Marriage: Preliminary
Report, The Lewin Group (Mar. 2002).

15
signed into law by President Clinton.
50
Furthermore, Presidents Bush and Obama, in particular,
have promoted extensive federal efforts on behalf of marriage and fatherhood.
51

In sum, the Court should recognize the Supreme Courts many prior statements
supporting the interests of states in childbearing, childrearing and social stability that are
advanced by opposite-sex marriages. That states and the federal government may have ignored
childrens interests too much in the past, is not a reason why states may not choose, and are not
choosing today, to legislate to better account for both childrens and societys robustly and
empirically supported interests in marriage.
III. Redefining marriage in a way that de-links sex, marriage and children can harm the
most vulnerable Americans and exacerbate the marriage gap, which is
responsible for increasing levels of social inequality in America.

The disappearing of childrens interests in marriage, both at law and in culture, and the
vaulting of adults emotional and status interests, are, today, robustly associated with a great deal
of harm, particularly among the most vulnerable Americans. This, in turn, has led to a growing
gap between the more and less privileged in the United States, threatening our social fabric.
Recognizing same-sex marriage would confirm and exacerbate these trends. Consequently, states
legitimately may wish to reconfirm their commitment to opposite-sex marriage on the grounds of
its procreative aspects, and refuse to grant marriage recognition to same-sex couples.
Speaking quite generally, law and culture before the 1960s, normatively held together
sex, marriage and children. Obviously, this was not true in the life of every citizen or family, but

50
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193
(1996).
51
See Helen M. Alvar, Curbing Its Enthusiasm: U.S. Federal Policy and the Unitary Family, 2 Intl J.
Jurisprudence Fam., 107, 12124 (2011).

16
social and legal norms widely reflected it. In the ensuring decades, however, these links
deteriorated substantially.
First, the link between sex and children weakened with the introduction of more
advanced birth control technology and abortion, both of which came to fore in the 1960s and
were announced to be constitutional rights by the Supreme Court in the 1960s and 1970s. Then,
the link between marriage and children was substantially weakened by the passage of no-fault
divorce laws during the 1970s. The transcripts of debates concerning the uniform no-fault
divorce law reveals the degree to which childrens interests were minimized in favor of adult
interests, sometimes with mistaken beliefs about childrens resiliency or on the false assertion
that failing marriages were acrimonious such that divorce would benefit, not harm children.
52

New reproductive technologies further separated children from marriage and sex from
children. Since the creation of the first test tube baby in 1978, which spawned a billion dollar
industry in the United States, neither the federal government nor any states have passed
meaningful restraints on such practices. There are today, still, almost no laws affecting who may
access these technologies or obtain donor sperm, oocytes, or embryos.
53
This persists despite
troubling indications that donor children experience an enhanced risk of physical or
psychological difficulties.
54
Interwoven with these developments is the declining stigma of

52
See Helen M. Alvar, The Turn Toward the Self in Marriage: Same-Sex Marriage and its Predecessors
in Family Law, 16 Stan. L. & Poly Rev. 101, 13753 (2005).
53
See The Presidents Council on Bioethics, Reproduction and Responsibility: The Regulation of New
Biotechnologies 812 (2003).
54
See Elizabeth Marquardt et al., My Daddys Name is Donor: A New Study of Young Adults Conceived
through Sperm Donation, Commission on Parenthood's Future, 2010; Jennifer J. Kurinczuk & Carol
Bower, Birth defects in infants conceived by intracytoplasmic sperm injection: an alternative explanation,
315 Brit. Med. J. 1260 (1997).

17
nonmarital sex, and even nonmarital pregnancies and births, which further separate sex from
marriage, but not always from children.
The effects of these legal and social developments are not evenly distributed across all
segments of the population. In fact, a robust and growing literature indicates that more privileged
Americansi.e. non-Hispanic Whites, and Americans with a college educationare
economically and educationally pulling away from other social classes to an alarming degree.
55

In the words of prominent sociologists W. Bradford Wilcox and Andrew J. Cherlin:
In the affluent neighborhoods where many college-educated American live, marriage is
alive and well and stable families are the rule . . . . [T]he divorce rate in this group has
declined to levels not seen since the early 1970s. In contrast, marriage and family
stability have been in decline in the kinds of neighborhoods that we used to call working
class . . . . More . . . of them are having children in brittle cohabiting unions. . . . [T]he
risk of divorce remains high. . . . The national retreat from marriage, which started in
low-income communities in the 1960s and 1970s, has now moved into Middle America.
56

By the numbers, Americans with no more than a high school degree, African Americans,
and some groups of Hispanic Americans, cohabit more, marry less often, divorce more, have
lower marital quality, and have more nonmarital births than those possessing a college degree,
sometimes by very large margins. The situation for those with less than a high school degree is
even more dire. A few comparisons portray the situation.

55
See, e.g., The Decline of Marriage and Rise of New Families, Pew Research Center (Nov. 18, 2010),
http://www. pewsocialtrends.org/2010/11/18/the-decline-of-marriage-and-rise-of-new-families/; Richard
Fry, No Reversal in Decline of Marriage, Pew Research Center (Nov. 20, 2012),
http://www.pewsocialtrends.org/2012/11/20/no-reversal-in decline-of-marriage/; Pamela J. Smock &
Wendy D Manning, Living Together Unmarried in the United States: Demographic Perspectives and
Implications for Family Policy, 26 Law & Poly 87 (2004); The National Marriage Project and the
Institute for American Values, When Marriage Disappears: The Retreat from Marriage in Middle
America, State of Our Unions (2010), http://nationalmarriageproject.org/resources/when-marriage-
disappears/ (last visited May 9, 2014).
56
W. Bradford Wilcox & Andrew J. Cherlin, The Marginalization of Marriage in Middle America,
Brookings, Aug. 10, 2011, at 2.

18
Among Americans with a college degree or more, the nonmarital birth rate is a mere 6%.
Among those with only a high school degree, the rate is 44%, and among those without a high
school degree, the rate is 54%.
57
Poor men and women are only half as likely to marry as those
with incomes at three or more times the poverty level.
58
The children of these less-privileged
groups are far less likely to be living with both their mother and their father, more likely to have
a nonmarital pregnancy, and less likely to graduate college or to obtain adequate employment as
an adult.
59

Experts attempting to diagnose this retreat from marriage in Middle America, certainly
identify economic factors, such as the decline in adequately paying work for men, and a belief by
both sexes that a man should have a stable job before entering marriage. But economic factors
cannot explain the entire retreat. Prior severe economic downturns were not accompanied by the
same retreat from marriage or increases in nonmarital childbearing.
60

Similarly, law professor Amy Wax has concluded: the limited research available
suggests that men who were once regarded as marriageable and were routinely married
including many men with earnings in the lower end of the distributionsare now more likely to
remain single than in the past. Furthermore, she points out, rationally speaking, that marriage
would bring certain gains to any two persons: two incomes, economies of scale, divisions of

57
Id.
58
Kathryn Edin & Joanna M. Reed, Why Dont They Just Get Married? Barriers to Marriage among the
Disadvantaged, The Future of Children, Fall 15(2) 2005, at 11718.
59
Wilcox & Cherlin, supra, at 6; The National Marriage Project, supra, at 1011, 17 (citing Ron Haskins
& Isabel Sawhill, Creating an Opportunity Society (2009); Nicholas H. Wolfinger, Understanding the
Divorce Cycle: The Children of Divorce in Their Own Marriages (2005)).
60
See Wilcox & Cherlin, supra, at 3.

19
labor, and gains from cooperation. But the less advantaged appear unmoved by such advantages,
for themselves or for their children.
61

What best explains these trends among the disadvantaged are changes in norms regarding
the relationships between sexual activity, births and marriage. Among these, researchers note
legal changes emphasizing parenthood but not marriage (e.g. strengthened child support
enforcement laws), and emphasizing individual rights as distinguished from marriage. They also
point to the declining stigma of nonmarital sex, particularly among the lesser educated, and the
availability of the pill for separating sex and children.
62
Professor Cherlin writes that law and
culture made other ways of living, as distinguished from marriage, not only more acceptable, but
also more practically feasible.
63

Among the lesser privileged, stable employment for the man and a love relationship, are
the precursors for marriage. The disadvantaged are far less concerned than the more privileged
about having children without marriage. To them, marriage is not about children, and children do
not necessarily indicate the wisdom of marrying. And there is further evidence that this trend
away from linking childrens well-being to a stable home with both a mother and a father is
becoming characteristic not only of the disadvantaged, but also of the millennial generation, as
well.
64
Professor Cherlin confirms that among young adults who are not necessarily poor, the

61
Amy L. Wax, Diverging family structure and rational behavior: the decline in marriage as a
disorder of choice, in Research Handbook on the Economics of Family Law 2930, 31, 33 (Lloyd R.
Cohen & Joshua D. Wright, eds., 2011).
62
Wilcox & Cherlin, supra, at 34.
63
Andrew J. Cherlin, American Marriage in the Early Twenty-First Century, The Future of Children, Fall
15(2) 2005, at 41.
64
See Wendy Wang & Paul Taylor, For Millennials, Parenthood Trumps Marriage, Pew Research
Center, 2 (Mar. 9, 2011), http://www.pewsocialtrends.org/2011/03/09/for-millennials-parenthood-trumps-

20
idea of soulmate marriage is spreading. Never-married Millennials report at a rate of 94% that
when you marry, your want your spouse to be your soul mate, first and foremost. They hope
for a super relationship, an intensely private, spiritualized union, combining sexual fidelity,
romantic love, emotional intimacy, and togetherness.
65

There is also emerging evidence, concerning both the young and the less-privileged, that
marriageonce the gateway to adulthood and parentingis viewed by the less privileged as a
luxury good. In the words of sociologists Kathryn Edin and Joanna Reed: Marriage has
become a luxury, rather than a necessity, a status symbol in the true meaning of the phrase.
These authors explain that the disadvantaged place very high expectations upon relationship
quality within marriage. If this interpretation is correct, the poor may marry at a lower rate
simply because they are not able to meet this higher marital standard.
Finally, there is a sense among the disadvantaged that marriage is reserved to those who
have arrived financially.
66
This appears to be an increasingly widely shared view among
experts.
67

Professor Cherlin points to an emphasis on emotional satisfaction and romantic love, and
an ethic of expressive individualism that emerged around the 1960s. There is a focus on bonds
of sentiment, and the emotional satisfaction of spouses becomes an important criterion for

marriage/ (on the question of a childs need for two, married parents, 51% of Millennials disagreed in
2008, compared to 39% of Generation Xers in 1997).
65
Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. of Marriage & Fam. 848,
856 (2004).
66
Edin & Reed, supra, at 117, 121122.
67
See, e.g., Pamela J. Smock, The Wax and Wane of Marriage: Prospects for Marriage in the 21st
Century, 66 J. of Marriage & Fam. 966, 971 (2004) (success is difficult because marriage means so
much; and the current thinking [is] . . . that our high expectations for marriage are part of what is
behind the retreat from marriage).

21
marital success.
68
Professor Cherlin continues, stating that in the later 20th century, an even
more individualistic perspective on the rewards of marriage took root. It was about the
development of their own sense of self and the expression of their feelings, as opposed to the
satisfaction they gained through building a family and playing the roles of spouse and parent.
The result was a transition from the companionate marriage to what we might call the
individualized marriage.
69

If this is all marriage means, why then do people continue to marry at all? Professor
Cherlin opines that they may be seeking what he calls enforceable trust, a lowering of the risk
that ones partner will renege on agreements.
70
Rather than being any longer a foundation on
which to build a family life then, marriage becomes the capstone of a preexisting, emotionally
close relationship, with the wedding as a symbol of the couples financial status, and of their
level of self development.
71
Yet marriage as merely a symbol of personal achievement is often
beyond the experience or reach of the lesser privileged. Increasingly visible expert literature
confirms that shifting cultural norms about marriage and procreation, the weakening of
institutional structures, and changes in notions of role responsibilities affect the least advantaged
to a greater degree.
72
Particularly for the disadvantaged, there is an underappreciated role for
traditional institutions in guiding behavior.
73

68
Cherlin, The Deinstitutionalization of American Marriage, supra, at 851.
69
Id. at 852.
70
Id. at 854.
71
Id. at 855, 857.
72
See, e.g., Wax, , supra, at 15, 5960.
73
Id. at 60.

22
Notwithstanding these troubling trends, Professor Wax concludes that a strong marriage
norm, is an opportunity to shape[] the habits of mind necessary to live up to its prescriptions,
while also reducing the need for individuals to perform the complicated calculations necessary to
chart their own course.
74
Of course, individuals decisions will be influenced by individual
characteristics and circumstances, but nonetheless, by replacing a complex personal calculus
with simple prudential imperatives, a strong expectation of marriage will make it easier . . . for
individuals to muster the restraint necessary to act on long-term thinking.
75

A strong prescription in favor of marriage as the gateway to adult responsibilities and to
caring for the next generation would therefore again likely influence behavior in favor of bearing
and rearing children by stably linked, biological parents, ready and able to prepare children for
responsible citizenship. Simple rules and norms place[] less of a burden on the deliberative
capacities and will of ordinary individuals. If, however, individuals are left to guide sexual and
reproductive choices in a culture of individualism, people faced with a menu of options engage
in a personal calculus of choice. Many will default to a local [short-term, personal gain]
perspective.
76

The retreat from marriage and marital childbearing affects not only individuals and
their communities. There is evidence that its problematic effects are being felt even at the
national level. Largely as a consequence of changes to family structure, including the
intergenerational effects of the absence or breakdown of marriage, there is a growing income and
wealth gap in the United States among the least educated, the moderately educated, and the

74
Id. at 60.
75
Id.
76
Id. at 61.

23
college educated. According to a leading study of this phenomenon, family structure changes
accounted for 50% to 100% of the increase in child poverty during the 1980s, and for 41% of the
increase in inequality between all Americans between 1976 and 2000.77 The National Marriage
Project even suggests that it is not too far-fetched to imagine that the United States could be
heading toward a 21
st
century version of a traditional Latin American model of family life, where
only a comparatively small oligarchy enjoys a stable married and family life.
78

In conclusion, marriage historian John Witte Jr. has observed that:
The new social science data present older prudential insights about marriage with more
statistical precision. They present ancient avuncular observations about marital benefits
with more inductive generalization. They reduce common Western observations about
marital health into more precise and measurable categories. These new social science
data thus offer something of a neutral apologetic for marriage.
79

The notion of marriage that same-sex advocates are describing, and demanding in court,
closely resembles the adult-centric view of marriage associated with the retreat from marriage
among disadvantaged Americans. It would intrinsically and overtly separate sex and children
from marriage, for every marriage and every couple and every child. It promotes a meaning of
marriage that empties it of the procreative interests understood and embraced by the Supreme
Court (and every prior generation). Rather, as redefined, marriage would merely become a
reparation, a symbolic capstone, and a personal reward, not a gateway to adult responsibilities,
including childbearing, childrearing and the inculcating of civic virtues in the next generation,
for the benefit of the larger society.

77
Molly A. Martin, Family Structure and Income Inequality in Families With Children, 1976-2000, 43
Demography 421, 42324, 440 (2006).
78
The National Marriage Project and the Institute for American Values, supra, at 17.
79
John Witte, Jr., The Goods and Goals of Marriage, 76 Notre Dame L. Rev. 1019, 1070 (2001).

24
Of course, it is not solely the fault of same-sex marriage proponents that we have come to
a tipping point regarding marriage in the United States, where if the procreational aspects of
marriage are not explicitly preserved and highlighted, additional harm will come upon vulnerable
Americans and our social fabric itself. The historic institution of marriage was already
weakened, likely emboldening same-sex marriage advocates to believe that a redefinition of
marriage was only a step, not a leap away. But in its essence, and in the arguments used to
promote it, same-sex marriage would be the coup de grce to the procreative meanings and
social roles of marriage. It is hoped that the necessary movement for equality and
nondiscrimination for gays and lesbians will choose a new path, and leave marriage to serve the
crucial purposes it is needed to serve.
CONCLUSION
For the reasons discussed herein, the Court should rule for the Defendants.
Respectfully submitted,

/s/ John B. Wells
John B. Wells (Bar # 23970)
P. O. Box 5235
Slidell, LA 70469 (mail)
769 Robert Blvd. Suite 201D
Slidell, LA 70458 (physical)
(985) 641-1855
(985) 649-1536 (fax)
JohnLawEsq@msn.com
www.JohnWellsLaw.com
Counsel for Amicus Curiae Professor Helen M. Alvar


25
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing brief has been served via the
courts EC/CMF system this 12th day of May 2014.
/s/ John B. Wells
John B. Wells

J ONATHAN P. ROBICHEAUX, et al.,

Plaintiffs
v.

J AMES D. CALDWELL, et al.,

Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)

J UDGE MARTIN L.C. FELDMAN

REF: ALL CASES

BRIEF OF AMICI CURIAE SOCIAL SCIENCE PROFESSORS IN SUPPORT OF DEFENDANTS
__________________________________________

F. EVANS SCHMIDT, La. Bar #21863
KOCH & SCHMIDT, L.L.C.
650 Poydras Street, Suite 2415
New Orleans, Louisiana 70130
Telephone: (504) 208-9040
Facsimile: (504) 208-9041
E-mail: feschmidt@kochschmidt.com

FELIX J . STERNFELS, La. Bar #24891
Of Counsel
LegalWorks Apostolate, PLLC
8230 Summa Ave., Suite A
Baton Rouge, Louisiana 70809
Telephone: (540) 622-8070
Facsimile: (540) 622-2247

Attorneys for Amici Curiae Social Science Professors

INTEREST OF AMICI CURIAE
1

Amici have studied and published on parental and household distinctions and their
association with child and young-adult developmental outcomes. Amicis expertise in these fields
will assist the Courts consideration of the issues presented by this case. Amici include (in
alphabetical order):
Douglas W. Allen (Ph.D., Economics, University of Washington) is Burnaby Mountain
Professor of Economics at Simon Fraser University, BC, Canada.
David J . Eggebeen (Ph.D., Sociology, University of North Carolina) is an Associate
Professor of Human Development and Sociology at Penn State University.
Alan J . Hawkins (Ph.D., Human Development and Family Studies, Penn State
University) is a Professor of Family Life at Brigham Young University.
Byron R. J ohnson (Ph.D., Criminology, Florida State University) is a Distinguished
Professor of Social Sciences at Baylor University.
Catherine R. Pakaluk (Ph.D., Economics, Harvard University) is an Assistant Professor
of Economics at Ave Maria University and a Faculty Research Fellow at the Stein Center
for Social Research at Ave Maria University.
J oseph Price (Ph.D., Economics, Cornell University) is an Assistant Professor of
Economics at Brigham Young University.
Mark D. Regnerus (Ph.D., Sociology, University of North Carolina) is an Associate
Professor of Sociology at the University of Texas at Austin, and a Faculty Research
1
No partys counsel authored this brief in whole or in part, and no one other than Amici or their
counsel contributed money that was intended to fund preparing or submitting this brief. All
parties have consented to the filing of this brief, and thus, Amici need not file a motion for leave
to file this brief.

2

Associate at the Population Research Center of the University of Texas.
SUMMARY OF THE ARGUMENT
A persistent claim by supporters of same-sex marriage is that there is no difference in
the outcomes of children raised by a biological mother and father and those who have been
raised by two women or two men. That claim has also been advanced by associations like the
American Psychological Association (APA). But as recent scholarship indicates, the claim is
difficult to support because nearly all of the studies upon which the no difference assertion is
based are rather limited, involving non-random, non-representative samples, often with relatively
few participants. Specifically, the vast majority of the studies were based on samples of fewer
than 100 parents or children, and typically representative only of well-educated, white women,
often with elevated incomes. These are hardly representative samples of the lesbian and gay
population raising children, and therefore not a sufficient basis to make broad claims about child
outcomes of same-sex parenting structures.
These and other methodological limitations make the APAs confident no difference
conclusion suspect. The claim also contradicts longstanding research asserting the view that the
ideal environment for raising children is a stable biological mother and father. The science on
comparative parenting structures, especially the research on same-sex households, is relatively
new. Therefore, a claim that another parenting structure provides the same level of benefit should
be rigorously tested and based on sound methodologies and representative samples. Nearly all of
the studies cited by the APA fail to meet those criteria.
The only studies based on large, random, representative samples tended to reveal the
opposite conclusion, finding significant differences in the outcomes of children raised by parents
in a same-sex relationship and those raised by a married biological mother and father. What is

3
clear is that much more study must be done on these questions. But there is no dispute that a
biological mother and father provide, on average, an effective and proven environment for
raising children. And it is reasonable to conclude that a mother and father function as a
complementary parenting unit and that each tends to contribute something unique and beneficial
to child development.
The State of Louisiana thus has a rational interest in supporting that proven parenting
structure by reserving the title and status of marriage to unions comprised of a man and a
woman.
ARGUMENT
I. Compelling Evidence Shows that Children Benefit from the Unique Parenting
Contributions of Both Men and Women.
It is a well-established and well-regarded sociological finding that [c]hildren who grow
up in a household with only one biological parent are worse off, on average, than children who
grow up in a household with both of their biological parents . . . regardless of whether the
resident parent remarries. Sara McLanahan & Gary Sandefur, Growing Up With a Single
Parent: What Hurts, What Helps 1 (1994); see also Wendy D. Manning & Kathleen A. Lamb,
Adolescent Well-Being in Cohabiting, Married, & Single-Parent Families, 65 J . Marriage &
Fam. 876, 890 (2003) (The advantage of marriage appears to exist primarily when the child is
the biological offspring of both parents.); Kristen Anderson Moore et al., Marriage from a
Childs Perspective, Child Trends Research Brief at 1-2 (2002) ([I]t is not simply the presence
of two parents . . . but the presence of two biological parents that seems to support childrens
development.).
A few decades ago J ustice William Brennan recognized what was likely considered a
very unremarkable proposition when he stated that the optimal situation for the child is to have

4
both an involved mother and an involved father. Bowen v. Gilliard, 483 U.S. 587, 614 (1987)
(Brennan, J . dissenting). Experts have long contended that both mothers and fathers make unique
contributions to parenting. As sociologist David Popenoe explains, [t]he burden of social
science evidence supports the idea that gender-differentiated parenting is important for human
development and that the contribution of fathers to childrearing is unique and irreplaceable.
David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood & Marriage
are Indispensable for the Good of Children & Society 146 (1996). Even Professor Michael
Lamb, a current advocate of same-sex marriage, supported this view before he became a
proponent of redefining marriage to include same-sex couples. He stated in no uncertain terms
that [b]oth mothers and fathers play crucial and qualitatively different roles in the socialization
of the child. Michael E. Lamb, Fathers: Forgotten Contributors to Child Development, 18
Human Dev. 245, 246 (1975).
Current research on the psycho-social development of children continues to affirm that
the complementarity of an intact family, with a mother and a father serving unique relational
roles, is optimal for a childs healthy development. See, e.g., Ruth Feldman, Oxytocin and Social
Affiliation In Humans, 61 Hormones & Behav. 380-391 (2012) (noting the different roles that
mothers and fathers play across species, the importance of those differences to human
development, and suggesting that human oxytocin systems may account for the different yet
complementary maternal and paternal functions). Even same-sex marriage supporters like Dr.
Lamb have admitted that men and women are not completely interchangeable with respect to
skills and abilities and that data suggests that the differences between maternal and paternal
behavior are more strongly related to either the parents biological gender or sex roles, than to
either their degree of involvement in infant care or their attitudes regarding the desirability of

5
paternal involvement in infant care. Trial transcript at 1064 and 1068, Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. 09-2292).
Dr. Lambs statement is consistent with a great deal of scholarship on the distinct ways in
which separate maternal and paternal contributions promote positive child-development
outcomes. For example, distinctive maternal contributions are numerous and significant. The
natural biological responsiveness of a mother to her infant fosters critical aspects of neural
development and capabilities for interactivity in the infant brain.
2
Mothers are also able to
extract the maximum return on the temporal investments of both parents in a two-parent home
because mothers provide critical direction for fathers on routine caretaking activities, particularly
those involving infants and toddlers. See Sandra L. Hofferth et al., The Demography of Fathers:
What Fathers Do, in Handbook of Father Involvement: Multidisciplinary Perspectives 81
(Catherine Tamis-Lamonda & Natasha Cabrera eds., 2002); Scott Coltrane, Family Man 54
(1996). This direction is needed in part because fathers do not share equally in the biological and
hormonal interconnectedness that develops between a mother and a child during pregnancy,
delivery, and lactation.
In comparison to fathers, mothers generally maintain more frequent and open
communication and enjoy greater emotional closeness with their children, in turn fostering a
sense of security in children with respect to the support offered by the family structure. Ross D.
Parke, Fatherhood 7 (Developing Child Series, J erome Bruner et al. eds., 1996). Mothers
2
See C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications
for Infant Mental Health, in Handbook of Infant Mental Health 37-59 (C.H. Zeanah J r. ed., 2d
ed. 2000); M. DeWolff & M. van Izjendoorn, Sensitivity and Attachment: A Meta-Analysis on
Parental Antecedents of Infant Attachment, 68 Child Dev. 571-91 (1997); M. Main & J .
Solomon, Discovery of an Insecure-Disorganized Disoriented Attachment Pattern, in Affective
Development in Infancy 95-124 (T.B. Brazelton & M.W. Yogman eds., 1986).

6

typical mode of parent-child play is predictable, interactive, and geared toward joint problem-
solving, which helps children to feel comfortable in the world they inhabit. Eleanor Maccoby,
The Two Sexes 266-67 (1998);
3
see also Parke, supra, at 5. Mothers also impose more limits and
tend to discipline more frequently, albeit with greater flexibility when compared with fathers.
Maccoby, supra, at 273.
Mothers also uniquely play a greater role in cultivating the language and communication
skills of their children. Parke, supra, at 6. Mothers help children understand their own feelings
and respond to the feelings of others, in part by encouraging open discussion of feelings and
emotions within the family unit. See Suzanne A. Denhamet al., Prediction of Externalizing
Behavior Problems From Early to Middle Childhood: The Role of Parental Socialization and
Emotion Expression, in Development and Psychopathology 23-45 (2000); Maccoby, supra, at
272. Active maternal influence and input is vital to the breadth and depth of childrens social
ties, and mothers play a central role in connecting children to friends and extended family. Paul
R. Amato, More Than Money? Mens Contributions to Their Childrens Lives?, in Men in
Families, When Do They Get Involved? What Difference Does It Make? 267 (Alan Booth &
Ann C. Crouter eds., 1998).
Fathers also make distinctive contributions to the upbringing of their children, and
positive paternal contributions play a key role in avoiding a variety of negative outcomes that
arise with greater frequency in homes where a father is not present. Having a father is associated
with an increase in positive outcomes for children in domains such as education, physical health,
3
Professor Maccoby, a distinguished feminist psychologist at Stanford University who
championed the idea that sex differences were caused only by socialization, is now
acknowledging the importance of biology in explaining sex differences in parenting. Maccoby,
supra, at 314.

7

and the avoidance of juvenile delinquency. McLanahan & Sandefur, supra (1994); Greg Duncan
& J eanne Brooks-Gunn, Consequences of Growing Up Poor (1999). As Professor Norval Glenn
explains, there are strong theoretical reasons for believing that both fathers and mothers are
important, and the huge amount of evidence of relatively poor average outcomes among
fatherless children makes it seem unlikely that these outcomes are solely the result of the
correlates of fatherlessness and not of fatherlessness itself. Norval D. Glenn, The Struggle for
Same-Sex Marriage, 41 Socy 25, 27 (2004).
Fathers engage proactively in spontaneous play with their children, and children who
roughhouse with their fathers . . . quickly learn that biting, kicking, and other forms of physical
violence are not acceptable. Popenoe, supra, at 144. A study conducted by developmental
psychologist Daniel Paquette found that fathers are also more likely to supervise children at play
while refraining from intervention in the childs activities, a pattern that stimulates exploration,
controlled risk-taking, and competition. Daniel Paquette & Mark Bigras, The Risky Situation: A
Procedure for Assessing the Father-Child Activation Relationship, 180 Early Childhood Dev. &
Care 33-50 (2010).
4
Boys who do not regularly experience the love, discipline, and modeling of
a good father are more likely to engage in what is called compensatory masculinity where they
reject and denigrate all that is feminine and instead seek to prove their masculinity by engaging
in domineering and violent behavior. Popenoe, supra, at 157.
Paternal modes of play activity are only one example of the ways in which fathers
encourage their children to take risks. Compared to mothers, fathers are more likely to encourage
children to try new things and to embrace novel situations and challenges. See Parke, supra, at 6.
4
See Linda Carroll, Dads Empower Kids to Take Chances, NBCNEWS.com, J une 18, 2010,
http://www.msnbc.msn.com/id/37741738.

8

One study summarized this aspect of paternal input and observed that [f]athers, more than
mothers, conveyed the feeling that they can rely on their adolescents, thus fathers might provide
a facilitating environment for adolescent attainment of differentiation from the family and
consolidation of independence. Shmuel Shulman & Moshe M. Klein, Distinctive Role of the
Father in Adolescent Separation-Individuation, 62 New Dir. Child & Adolesc. Dev. 41, 53
(1993).
Fathers also tend to utilize a different discipline style than mothers, in that they discipline
with less frequency, but greater predictability and less flexibility in terms of deviating from pre-
determined consequences for particular behavior. See Thomas G. Powers et al., Compliance and
Self-Assertion: Young Childrens Responses to Mothers Versus Fathers, 30 Dev. Psychol. 980-
89 (1994). Children respond differently to paternal discipline, and are comparatively more likely
to resist maternal commands and comply with paternal requests. Maccoby, supra, at 274-75.
This may be one reason why a number of studies have found that paternal influence and
involvement plays an outsized role in preventing adolescent boys from breaking the law and
lowering the odds that a teenage girl will become pregnant. See, e.g., Paul R. Amato & Fernando
Rivera, Paternal Involvement and Childrens Behavior Problems, 61 J . Marriage & Fam. 375-84
(1999) (finding that paternal involvement is linked to lower levels of delinquency and criminal
activity, even after controlling for maternal involvement); Mark D. Regnerus & Laura B.
Luchies, The Parent-Child Relationship and Opportunities for Adolescents First Sex, 27 J . Fam.
Issues 159-83 (2006) (noting that a study of 2000 adolescents showed that father-daughter
relationship, rather than mother-daughter relationship, was an important predictor of whether and
when adolescent girls transitioned to sexual activity); see also W. Brad Wilcox et al., Why
Marriage Matters: Twenty-Six Conclusions from the Social Sciences 14, 22-23 (3d ed. 2011)

9
(discussing evidence suggesting that female sexual development is slowed by early childhood
exposure to pheromones of biological father, and accelerated by regular early childhood
exposure to pheromones of adult male who is not childs biological father).
In sum, a substantial body of evidence demonstrates that both mothers and fathers make
unique contributions to a childs development. Same-sex parenting structures, by definition,
exclude either a mother or a father. Certainly same-sex couples, like other parenting structures,
can make quality and successful efforts in raising children. That is not in question. But the social
science evidence, especially evidence founded on conclusions from population-based samples,
suggests that there are unique advantages to a parenting structure consisting of both a mother and
a father, political interests to the contrary notwithstanding. Therefore it remains rational for
government to provide distinctive recognition and incentive to that proven parenting structure
through the status of marriage.
II. The Claim of No Difference in Outcomes of Children Raised by Gay and Lesbian
Parents and Intact Biological Parents Is Empirically Undermined by Significant
Methodological Limitations.
Decades of study on various parenting structures yield the near uniform conclusion that a
biological mother and father provide optimal child outcomes. Mark Regnerus, How Different Are
the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New
Family Structures Study, 41 Soc. Sci. Research 752, 763 (2012) [hereinafter How Different?]. So
the claim that another parenting relationship produces child outcomes just as good as (or even
better than) intact biological parents is a surprising proposition, to say the least, and one that
must be rigorously tested (and until then, viewed with healthy suspicion).
5

5
Although outcomes of children raised by adoptive parents are often positive, outcomes for
those children are not typically as positive as children raised by biological parents in an intact

10

A closer examination of the studies purporting to show no difference between same-sex
parenting and parenting by biological parents suggests that they cannot bear the weight that
advocates place on them. Most striking is that rarely do claims of no difference emerge from a
large, random, representative sample of the population. While this can be attributed to the fact
that same-sex parents constitute a small population that is difficult to locate randomly, it
nevertheless ought to raise concern when such samples are used to support broad public policy
changes, like those at issue in this case. In short, it is scientifically suspect to claim no
difference with thin support.
The Eleventh Circuit has recognized these limitations in the research on gay and lesbian
parenting, noting 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 consisting of disproportionately
affluent, educated parents. Lofton v. Secy of Dept of Children and Family Servs., 358 F.3d
804, 825 (11th Cir. 2004).
A. The APA studies are based on small sample sizes.
Most of the studies that the American Psychological Association relies on to support its
no-difference conclusion are based on small, non-representative, convenience samples of fewer
than 100 participants. Loren D. Marks, Same-Sex Parenting and Childrens Outcomes: A
marriage, despite the rigorous screening process involved in adoption. Regnerus, How
Different?, supra, at 754-55 ([S]tudies of adoptiona common method by which many same-
sex couples (but more heterosexual ones) become parentshave repeatedly and consistently
revealed important and wide-ranging differences, on average, between adopted children and
biological ones. In fact, these differences have been so pervasive and consistent that adoption
experts now emphasize that acknowledgement of difference is critical for both parents and
clinicians when working with adopted children and teens. (citing Brent Miller et al.,
Comparisons of Adopted and Non-Adopted Adolescents In A Large, Nationally Representative
Sample, 71 Child Dev. 1458 (2000)).

11

Closer Examination of the American Psychological Associations Brief on Lesbian and Gay
Parenting, 41 Soc. Sci. Res. 735, 736-38 (2012); see also Douglas W. Allen et al.,
Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld,
Demography November 2012, http://link.springer.com/article/10.1007/s13524-012-0169-
x/fulltext.html [hereinafter Comment on Rosenfeld] (Although there has been considerable
research on the effect of family structure on child outcomes, almost none of the research using
nationally representative samples has included same-sex parents as part of the analysis.).
The hallmark of a rigorous study is a large, representative pool of participants drawn
from a population-based random sample. Regnerus, How Different? supra, at 754. It is very
difficult to draw reliable conclusions from the data used in small samples because the
conclusions from such limited studies cannot be confidently extrapolated to the general
population and the risk of erroneously attributing statistical insignificance to between-group
comparisons (that is, mistakenly concluding that there are no differences between groups) is
high. Marks, supra, at 736.
Even analyzing matched samples, as a variety of studies have done, fails to
mitigate the challenge of locating statistically-significant differences when the
sample size is small. This is a concern in all social science, but one that is doubly
important when there may be motivation to confirm the null hypothesis (that is,
that there are in fact no statistically-significant differences between groups).

Regnerus, How Different?, supra, at 754.
A simple illustration shows the concern with small sample sizes. It is well established
that having a stepfather in the home tends on average to result in less optimal child outcomes.
Mark V. Flinn et al., Fluctuating Asymmetry of Stepchildren, 20 Evol. Hum. Behav. 465 (1999)
(In summary, the absence of a genetic relationship between stepchildren and stepparents may
affect the quality and quantity of careincluding specific behaviors that affect nutrition, sleep

12
routines, hygiene, medical attention, work loads, instruction, comforting, protection and so
forthwith consequent affect on growth.); Marilyn Coleman et al., Reinvestigating
Remarriage: Another Decade of Progress, 62 J . Marriage & Fam. 1288, 1293 (2000) ([M]ost
researchers reported that stepchildren were similar to children living with single mothers on the
preponderance of outcome measures and that step-children generally were at a greater risk for
problems than were children living with both of their parents.). That is relevant for the matter at
hand because every child in a planned gay or lesbian family has at least one nonbiological
step parent. But because of the small sample sizes of same-sex parents (especially gay fathers)
represented in the studies, these outcome differences have not often surfaced (or even been
evaluated), raising additional questions about the reliability of the studies purporting to show no
differences. Moreover, comparisons are most often made between children in heterosexual
stepfamilies and those in gay unions, a comparison that overlooks the general consensus about
the importance of biological connections.
Notably, one of the larger studies that the APA cites, but does not discuss, showed
significant outcome differences between children raised by same-sex parents and those raised by
biological parents in an intact relationship. Overall, the study has shown that children of
married couples are more likely to do well at school in academic and social terms, than children
of cohabiting and homosexual couples. Marks, supra, at 742-43 (quoting S. Sarantokas,
Children In Three Contexts: Family, Education, and Social Development, 21 Children Australia
23 (1996), and describing the studys findings in detail, its comparative statistical strength, and
the APAs puzzling de-emphasis of it).
B. The APAs studies are largely based on homogeneous samples.
Not only are most of the studies claiming no differences in same-sex parenting based on

13
small sample sizes, they also tend to draw upon homogeneous samples of privileged lesbian
mothers to represent all same-sex parents. Marks, supra, at 739. Many of the studies cited by
the APA, for example, include no minorities, using instead samples predominantly composed of
white, well-educated, middle-to-upper-class women. Id. at 738. As one study candidly
acknowledged, the study sample was small and biased toward well-educated, white women with
high incomes. These factors have plagued other [same-sex parenting] studies, and remain a
concern of researchers in this field. Id. (quoting Laura Lott-Whitehead & Carol T. Tully, The
Family Lives of Lesbian Mothers, 63 Smith Coll. Studies Soc. Work 275 (1993)); see also C.J .
Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025, 1029 (1992) (Despite the
diversity of gay and lesbian communities, both in the United States and abroad, samples of
children [and parents] have been relatively homogenous . . . . Samples for which demographic
information was reported have been described as predominantly Caucasian, well-educated, and
middle to upper class.).
Very few of the APA-cited studies on same-sex parenting analyzed the outcomes of
children raised by gay fathers. Only eight of the fifty-nine cited studies included gay fathers, and
only four of those included a heterosexual comparison group. Marks, supra, at 739. Systematic
research has so far not considered developmental outcomes for children brought up from birth by
single gay men or gay male couples (planned gay father families), possibly because of the
difficulty of locating an adequate sample. Fiona Tasker, Lesbian Mothers, Gay Fathers and
Their Children: A Review, 26 Dev. & Behav. Pediatr. 224, 225 (2005).
C. Most of the samples in the APA-cited studies relied on non-random,
convenience sampling.
It is not surprising that the samples in these studies are so homogenous, given that most
of the people in them were recruited by use of non-random, convenience (snowball) sampling.

14
Regnerus, How Different?, supra, at 753. For instance, one data-collection effort that has been
the subject of at least 19 different peer-reviewed publications to date recruited entirely by self-
selection from announcements posted at lesbian events, in womens bookstores, and in lesbian
newspapers in Boston, Washington, and San Francisco. Id. This method of recruitment was
common among the APA-cited studies. Id. Such snowball sampling is known to have some
serious problems because it is impossible to generalize the findings of such a specific subgroup
to the general population. Id. (quoting Tom A. Snijders, Estimation on the Basis of Snowball
Samples, 36 Bulletin de Methodologie Sociologique 59 (1992)).
Because such studies samples are garnered from people who have a great deal in
common with each otherand who chose to be studiedhow well their findings characterize
the broader population of gay families remains unknown. By their own reports, social
researchers examining same-sex parenting have repeatedly selected small, non-representative,
homogeneous samples of privileged lesbian mothers to represent all same-sex parents. Marks,
supra, at 739; see also Walter R. Schumm, What Was Really Learned From Tasker &
Golomboks (1995) Study of Lesbian & Single Parent Mothers?, 95 Psych. Reports 422, 423
(2004) ([O]ne has to be very careful in interpreting research on homosexual issues and be wary
of outcomes when samples are very small and often nonrandom, so the null hypothesis is not
rejected but is used for political purposes as if a meaningful result had been obtained).
6

6
Other scholars have noted that studies purporting to show no difference between children raised
by same-sex couples and those raised by married mothers and fathers share these significant
limitations. One of the most extensive critiques of the research was offered by Professor Steven
Lowell Nock of the University of Virginia. Nock Aff., Halpern v. Attorney General of Canada,
Case No. 684/00 (Ontario Sup. Ct. J ustice 2001), available at http://marriagelaw.cua.edu/
Law/cases/Canada/ontario/halpern/aff_nock.pdf. See also Glenn, supra, at 26-27; Schumm,
supra, at 423; Robert Lerner & Althea K. Nagai, No Basis: What the Studies Dont Tell Us About
Same-Sex Parenting (Marriage Law Project, 2001).

15

If these studies are used to shed light on the outcomes of children raised by highly
educated and affluent middle to upper class white women, their conclusions have merit. But the
studies ought not be generalized to the childhood and adolescent experiences of the wide
spectrum of gay and lesbian parents, since gay and lesbian parents are, in reality, economically,
racially, and socially far more diverse than those studies imply.
The issue is further complicated by the political climate surrounding the fundamental
definition of marriage. Given the widespread support for same-sex marriage among social and
behavioral scientists, it is becoming politically incorrect in academic circles even to suggest that
arguments being used in support of same-sex marriage might be wrong. Glenn, supra, at 25; see
also J udith Stacey & Timothy Biblarz, (How) Does the Sexual Orientation of Parents Matter?,
66 American Sociol. Rev. 159, 161 (2001) ([T]oo many psychologists who are sympathetic to
lesbigay parenting seem hesitant to theorize at all and are apt to downplay the significance of
any findings of differences.).
Given such limitations characteristic of a nascent area of social-science research, the vast
majority of the studies relied upon by the APA for its general claim that there is no difference in
outcomes of children raised by gay and lesbian parents and those raised by heterosexual parents
are poorly poised to address the broad propositions asserted in this case.
III. The Largest Population-Based Studies Do Not Confirm the No Differences
Conclusion about Child Outcomes among Same-Sex Parents.
Recent research using larger, randomly selected, nationally representative samples
suggests that there are significant differences in the outcomes of children raised by parents who
have had a same-sex relationship and children raised by intact biological parents. This research,
called the New Family Structures Study (NFSS), was conducted on young adults with a very
large sample size of nearly 3,000 participants, comprising a racially, socioeconomically, and

16
geographically diverse group reflective of the diversity noted in demographic mappings of the
gay and lesbian population in America. Regnerus, How Different?, supra, at 755, 757. The study
surveyed adults aged 18-39 about their parent(s) past same-sex relationships, which occurred as
recently as a few years ago or as far back as 30 or more years.
7
Among that sample, 175 people
reported living with a mother who was (and may still be) in a same-sex romantic relationship,
and 73 reported living with a father who had been in a same-sex romantic relationship.
The study looked at social behaviors, health behaviors, and relationships comparing
child outcomes (as reported by the adult children rather than their parents) among various
groups, including married biological parents, stepparents, single parents, and parents who had
been in a same-sex romantic relationship. When compared with children who grew up in
biologically (still) intact, mother-father families, the children of women who reported a same-sex
relationship look markedly different on numerous outcomes, including many that are obviously
suboptimal (such as education, depression, employment status, or marijuana use). Id. at 764.
Some of the statistically significant differences where adult children who reported living in a
household with their mother and her partner for at least some period of time (denoted below as
MLRthat is, mother in a lesbian relationship) fared worse than children raised by intact
biological parents (denoted below as IBFthat is, intact biological family) included:
receiving welfare while growing up (17% of the IBF group and 70% of the MLR group),

currently receiving public assistance (10% of the IBF group and 49% of the MLR group),

current full-time employment status (49% of the IBF group and 17% of the MLR group),

current unemployment (8% of the IBF group and 40% of the MLR group),

7
The NFSS may best capture what might be called an earlier generation of children of same-
sex parents, and includes among them many who witnessed a failed heterosexual union.

17

having an affair while married or cohabitating (13% of the IBF group and 38% of the
MLR group),

having been touched sexually by a parent or other adult caregiver (2% of the IBF group
and 26% of the MLR group), and

having been forced to have sex against their will (8% of the IBF group and 27% of the
MLR group).
Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life
Outcomes for Adult Children: Answering Critics of the New Family Structures Study with
Additional Analysis, 41 Soc. Sci. Res. 1367, 1372-74 (2012) [hereinafter Parental Same-Sex
Relationships]; see also Douglas W. Allen, High school graduation rates among children of
same-sex households, Rev. Econ. Household, Sept. 2013 (Children living with gay and lesbian
families in 2006 were about 65% as likely to graduate compared to children living in opposite
sex marriage families.).
Because of the smaller sample size for fathers who have had gay relationships, there were
not as many significant findings as compared to mothers who have had lesbian relationships.
Nevertheless, adult children of fathers who are or have been in a same-sex relationship are more
apt than [adult children raised by intact biological parents] to smoke, have been arrested, pled
guilty to non-minor offenses, and report more numerous sex partners. Regnerus, How
Different?, supra, at 764.
The study does not purport to assess causation or definitively answer political questions
about family structures. Indeed, it would be difficult, if not impossible, to precisely determine
causation under these circumstances. Moreover, instability was a hallmark of the majority of
those relationships that were residential (with the parent and partner living with the respondent
child), and comparatively few lasted for more than five years. But it is noteworthy that the
groups display numerous significant distinctions, which raises skepticism about the APAs

18
confident declarative no differences conclusion.
When the NFSS-based study was released in summer 2012, it initiated much heated
discussion about same-sex parenting, and encountered widespread criticism and a level of
scrutiny unusual for a published sociological study based on nationally representative data.
Regnerus, Parental Same-Sex Relationships, supra, at 1367. Despite the attention and scrutiny,
the study remains in print and subsequent analyses of the (now publicly-accessible) data have
revealed no analytic errors. One of the most frequent criticisms by supporters of same-sex
marriage was that the study compared apples to oranges because it compared the adult children
of stably intact biological parents with adult children of stably intact same-sex households and
adult children whose mother or father left a heterosexual union for a same-sex one. Id.
But as the authors follow-up study noted, that criticism is unfair for at least two reasons.
First, if stability is a key asset for households with children, then it is sensible to use intact
biological families in any comparative assessment. Id. at 1368. Indeed, a primary problem of
nearly all previous studies is that they seldom included a married biological family control
group. Id. at 1368-69. Second, that most of the same-sex households in the study were unstable
at some point does not mean that the study undercounted stable same-sex households; it
suggested thatin the era studiedsame-sex relationships were often short-lived. Id. The latter
alternative is possible, if not probable, given other research on the comparative volatility of
lesbian relationships.
A study of Norwegian and Swedish same-sex marriages notes that divorce risk is
higher in same-sex marriages and that the risk of divorce for female partnerships
actually is more than twice that for male unions. Moreover, early same-sex
marriagesthose occurring shortly after a shift in marriage lawexhibited a
similar risk of divorce as did more recent unions, suggesting no notable variation
in instability over time as a function of new law or pent-up demand among more
stable, longstanding relationships. The study authors estimate that in Sweden,
30% of female marriages are likely to end in divorce within 6 years of formation,

19
compared with 20% for male marriages and 13% for heterosexual ones.

Id. at 1370 (emphasis added) (quoting Gunnar Anderson et al., The Demographics of Same-Sex
Marriages In Norway and Sweden, 43 Demography 79, 89 (2006)).
8

Although this unanswered, empirically unknown question remains, what is clear is that
there remains much to be studied in this domain, and hence confident assertions of no
difference ought to be viewed with suspicion. As the studys author indicated:
Perhaps in social reality there are really two gold standards of family stability
and context for childrens flourishinga heterosexual stably-coupled household
and the same among gay/lesbian householdsbut no population-based sample
analysis is yet able to consistently confirm wide evidence of the latter. Moreover,
a stronger burden of proof than has been employed to date ought to characterize
studies which conclude no differences, especially in light of longstanding
reliance on nonrandom samples of unknown bias and the high risk of making
[significant] errors in small-sample studies. Simply put, the science here is young.
Until much larger random samples can be drawn and evaluated, the probability-
based evidence that exists suggests that the biologically-intact two-parent
household remains an optimal setting for long-term flourishing of children.

Id. at 1377 (citations omitted); see also Walter R. Schumm, Methodological Decisions and the
Evaluation of Possible Effects of Different Family Structures on Children: The New Family
Structures Survey, 41 Soc. Sci. Research 1357-66 (2012) (validating methodological decisions in
New Family Structures Study, and noting similar decisions in other large-scale surveys).
Other population-based studies have similarly identified better outcomes for children
raised by a biological mother and father than children raised in other parenting structures. In
assessing group differences in academic progress through school, Michael J . Rosenfeld noted no
differences in school progress for children raised by same-sex parents. Michael J . Rosenfeld,
Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010).
8
Although gay mens relationships appear more stable than lesbian relationships, they are less
likely to be monogamous. Id. (citing Colleen Hoff & Sean Beougher, Sexual Agreements Among
Gay Male Couples, 39 Arch. Sex. Beh. 774 (2010)).

20

But a reanalysis of his high-quality, census-based samplethis time including the children of all
couples, not just those who were residentially stable for at least five yearsrevealed that
children being raised by same-sex couples are 35% less likely to make normal progress through
school. Allen, Comment on Rosenfeld, supra (noting findings that are strikingly different from
those of the original [Rosenfeld] study). Thus Rosenfelds original no differences conclusion
may be a result of dropping more unstable households from his analytic sample.
Indeed, no existing study yet bears the ability to randomly compare large numbers of
children raised by gay couples with the same among heterosexual couples over a long period of
time. The social science of same-sex parenting structures remains young, and subject to
significant limitations about what can be known, given that the influence of household structures
and experiences on child outcomes is not a topic for experimental research design. Yet those
analyses that employ large population-based samples continue to document basic differences and
raise questions about the comparative stability of family forms. With significant unanswered
questions about whether children develop as well in same-sex as in opposite-sex households, it
remains prudent for government to continue to recognize marriage as a man-woman union,
thereby promoting what is known to be an ideal environment for raising children.
CONCLUSION
For the foregoing reasons, Amici urge this Court to rule for the Defendants.
KOCH & SCHMIDT, L.L.C.
F. Evans Schmidt
F. EVANS SCHMIDT, La. Bar #21863
650 Poydras Street, Suite 2415
Telephone: (504) 208-9040
Facsimile: (504) 208-9041
E-mail: feschmidt@kochschmidt.com

21
FELIX J . STERNFELS, La. Bar #24891
Of Counsel
LegalWorks Apostolate, PLLC
8230 Summa Ave., Suite A
Baton Rouge, Louisiana 70809
Telephone: (540) 622-8070
Facsimile: (540) 622-2247
Attorneys for Amici Curiae Social Science Professors

22
I hereby certify that on May 12, 2014, I electronically filed the foregoing with the Clerk
of the Court for the United States District Court for the Eastern District of Louisiana by using the
CM/ECF system. All participants in the case are registered CM/ECF users and will be served by
the CM/ECF system.

/s/ F. Evans Schmidt
Attorney for Amici Curiae Social Science Professors

23
TABLE OF AUTHORITIES
Cases
Bowen v. Gilliard,
483 U.S. 587 (1987) .............................................................................................................5
Lofton v. Secretary of the Department of Children and Family Services,
358 F.3d 804 (11th Cir. 2004) ...........................................................................................14
Other Authorities
Douglas W. Allen et al.,
Nontraditional Families and Childhood Progress Through School: A
Comment on Rosenfeld, Demography, November 2012,
http://link.springer.com/article/10.1007/s13524-012-0169-x/fulltext.html .................14, 26
Douglas W. Allen,
High school graduation rates among children of same-sex households,
Rev. Econ. Household, Sept. 2013 ....................................................................................22
Paul R. Amato,
More Than Money? Mens Contributions to Their Childrens Lives?, in
Men in Families, When Do They Get Involved? What Difference Does It
Make? 267 (1998) ................................................................................................................8
Paul R. Amato & Fernando Rivera,
Paternal Involvement and Childrens Behavior Problems, 61 J ournal of
Marriage and the Family 375 (1999) .................................................................................11
Linda Carroll,
Dads Empower Kids to Take Chances, NBCNEWS.com, J une 18, 2010,
http://www.msnbc.msn.com/id/37741738 .........................................................................10
Marilyn Coleman et al.,
Reinvestigating Remarriage: Another Decade of Progress, 62 J ournal of
Marriage and the Family 1288 (2000) ...............................................................................15
Scott Coltrane,
Family Man (1996) ..............................................................................................................7
Suzanne A. Denhamet al.,
Prediction of Externalizing Behavior Problems From Early to Middle
Childhood: The Role of Parental Socialization and Emotion Expression, in
Development and Psychopathology 23 (2000) ....................................................................8
Case 2:13-cv-05090-MLCF-ALC Document 91-1 Filed 05/12/14 Page 1 of 4
M. DeWolff & M. van Izjendoorn,
Sensitivity and Attachment: A Meta-Analysis on Parental Antecedents of
Infant Attachment, 68 Child Development 571 (1997) ........................................................6
Greg Duncan & J eanne Brooks-Gunn,
Consequences of Growing Up Poor (1999) .........................................................................9
Ruth Feldman,
Oxytocin and Social Affiliation In Humans, 61 Hormones and Behavior
380 (2012) ............................................................................................................................5
Mark V. Flinn et al.,
Fluctuating Asymmetry of Stepchildren, 20 Evolution of Human Behavior
465 (1999) ..........................................................................................................................15
Norval D. Glenn,
The Struggle for Same-Sex Marriage, 41 Society 25 (2004) ...................................9, 19, 20
Sandra L. Hofferth et al.,
The Demography of Fathers: What Fathers Do, in Handbook of Father
Involvement: Multidisciplinary Perspectives 81 (2002) ......................................................7
Michael E. Lamb,
Fathers: Forgotten Contributors to Child Development, 18 Human
Development 245 (1975) .....................................................................................................5
Robert Lerner & Althea K. Nagai,
No Basis: What the Studies Dont Tell Us About Same-Sex Parenting
(Marriage Law Project, 2001) ............................................................................................19
Eleanor Maccoby,
The Two Sexes (1998) ................................................................................................7, 8, 11
M. Main & J . Solomon,
Discovery of an Insecure-Disorganized/Disoriented Attachment Pattern,
in Affective Development in Infancy 95 (1986) ..................................................................6
Wendy D. Manning & Kathleen A. Lamb,
Adolescent Well-Being in Cohabiting, Married, & Single-Parent Families,
65 J ournal of Marriage and the Family 876 (2003) .............................................................4
Loren D. Marks,
Same-Sex Parenting and Childrens Outcomes: A Closer Examination of
the American Psychological Associations Brief on Lesbian and Gay
Parenting, 41 Social Science Research 735 (2012) ...................................14, 15, 16, 17, 19
Sara McLanahan & Gary Sandefur,
Growing Up With a Single Parent: What Hurts, What Helps 1 (1994) ...........................4, 9
Kristen Anderson Moore et al.,
Marriage from a Childs Perspective, Child Trends Research Brief (2002) .......................4
C.A. Nelson & M. Bosquet,
Neurobiology of Fetal and Infant Development: Implications for Infant
Mental Health, in Handbook of Infant Mental Health 37, (2d ed. 2000) ............................6
Affidavit of Professor Steven Lowell Nock,
Halpern v. Attorney General of Canada, Case No. 684/00 (Ontario Sup.
Ct. J ustice 2001), available at http://marriagelaw.cua.edu/Law/
cases/Canada/ontario/halpern/aff_nock.pdf .......................................................................19
Daniel Paquette & Mark Bigras,
The Risky Situation: A Procedure for Assessing the Father-Child
Activation Relationship, 180 Early Childhood Development and Care 33
(2010) ...................................................................................................................................9
Ross D. Parke,
Fatherhood (1996) .....................................................................................................7, 8, 10
C.J . Patterson,
Children of Lesbian and Gay Parents, 63 Child Development 1025 (1992) ....................17
Trial transcript at 1064 and 1068, Perry v. Schwarzenegger, 704 F. Supp. 2d 921
(N.D. Cal. 2010) (No. 09-2292) ...........................................................................................6
David Popenoe,
Life Without Father: Compelling New Evidence that Fatherhood &
Marriage are Indispensable for the Good of Children & Society 146
(1996) .........................................................................................................................5, 9, 10
Thomas G. Powers et al.,
Compliance and Self-Assertion: Young Childrens Responses to Mothers
Versus Fathers, 30 Developmental Psychology 980 (1994) .............................................11
Mark D. Regnerus,
How Different Are the Adult Children of Parents Who Have Same-Sex
Relationships? Findings from the New Family Structures Study, 41 Social
Science Research 752 (2012) ..................................................................................... passim
Mark D. Regnerus,
Parental Same-Sex Relationships, Family Instability, and Subsequent Life
Outcomes for Adult Children: Answering Critics of the New Family
Structures Study with Additional Analysis, 41 Social Science Research
1367 (2012) ......................................................................................................22, 23, 24, 25
Mark D. Regnerus & Laura B. Luchies,
The Parent-Child Relationship and Opportunities for Adolescents First
Sex, 27 J ournal of Family Issues 159 (2006) .....................................................................11
Michael J . Rosenfeld,
Nontraditional Families and Childhood Progress Through School, 47
Demography 755 (2010) ....................................................................................................26
Shmuel Shulman & Moshe M. Klein,
Distinctive Role of the Father in Adolescent Separation-Individuation, 62
New Directions for Child and Adolescent Development 41 (1993) ..................................10
Walter R. Schumm,
What Was Really Learned From Tasker & Golomboks (1995) Study of
Lesbian & Single Parent Mothers?, 95 Psychological Reports 422 (2004) ......................19
Walter R. Schumm,
Methodological Decisions and the Evaluation of Possible Effects of
Different Family Structures on Children: The New Family Structures
Survey, 41 Social Science Research 1357 (2012) ..............................................................25
J udith Stacey & Timothy Biblarz,
(How) Does the Sexual Orientation of Parents Matter?, 66 American
Sociological Review 159 (2001) ........................................................................................20
Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26
Developmental and Behavioral Pediatrics 224 (2005) ......................................................18
W. Brad Wilcox et al.,
Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences,
14 (3d ed. 2011) .................................................................................................................11

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ....................................................................................................1
SUMMARY OF THE ARGUMENT ..............................................................................................2
ARGUMENT ...................................................................................................................................4
I. Compelling Evidence Shows that Children Benefit from the Unique Parenting
Contributions of Both Men and Women ..............................................................................4
II. The Claim of No Difference in Outcomes of Children Raised by Gay and
Lesbian Parents and Intact Biological Parents Is Empirically Undermined by
Significant Methodological Limitations ............................................................................12
A. The APA studies are based on small sample sizes ......................................................14
B. The APAs studies are largely based on homogeneous samples .................................16
C. Most of the samples in the APA-cited studies relied on non-random, convenience
sampling .......................................................................................................................18
III. The Largest Population-Based Studies Do Not Confirm the No Differences Conclusion
about Child Outcomes among Same-Sex Parents ..............................................................20
CONCLUSION ..............................................................................................................................27
CERTIFICATE OF SERVICE ......................................................................................................29

United States District Court
for the


Plaintiffs
v.


Defendants.

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CIVIL ACTION
NO. 13- 5090
(CONSOLIDATED
WITH 14-00097)

SECTION F(5)


REF: ALL CASES
***************************************

BRIEF AMI CI CURI AE OF LAMBDA LEGAL DEFENSE AND EDUCATION FUND,
INC., ACLU FOUNDATION OF LOUISIANA, AND
NATIONAL CENTER FOR LESBIAN RIGHTS
IN SUPPORT OF PLAINTIFFS

Justin P. Harrison
1
(La Bar No. 33575)
Legal Director
ACLU Foundation of Louisiana
P.O. Box 56157
Tel. (504) 522-0628
Email: jharrison@laaclu.org

1
Attorneys Beatrice Dohrn, Susan Sommer, Shannon Minter and Camilla Taylor
contributed to the writing of this brief but are not admitted to practice in State of Louisiana.
2

AMI CI S IDENTITY, INTERESTS, AND AUTHORITY TO FILE
2

Lambda Legal Defense and Education Fund, Inc. (Lambda Legal) is a non-profit
national organization committed to achieving full recognition of the civil rights of lesbian, gay,
bisexual, and transgender (LGBT) people and those living with HIV through impact litigation,
education, and public policy work. Lambda Legal has participated as party or amicus counsel in
numerous challenges to state laws prohibiting same-sex couples from marrying or receiving
legal respect for their existing marriages including as plaintiffs counsel in Henry v. Himes, No.
1:14- cv-129, 2014 U.S. Dist. LEXIS 51211 (S.D. Ohio Apr. 14, 2014), declaring facially
unconstitutional laws similar to those at issue here, and Varnum v. Brien, 763 N.W.2d 862 (Iowa
2009), declaring Iowas marriage ban unconstitutional. Lambda Legal has participated in the
leading Supreme Court cases redressing sexual orientation discrimination, as party counsel in
Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), and as
amicus in United States v. Windsor, 133 S. Ct. 2675 (2013). Lambda Legal has both an interest
in protecting lesbian and gay couples and their children in every state of the nation and extensive
expertise in the issues before this Court.
The ACLU Foundation of Louisiana is the non-profit advocacy and litigation arm of the
ACLU of Louisiana, which is the state affiliate of the American Civil Liberties Union. The
ACLU is the nations leading organization dedicated to the defense of the constitutional rights of
everyone in this country. As a non-profit, non-partisan organization, the ACLU has defended
the civil liberties of all segments of society without regard to political affiliation or belief. The

2
This amicus brief is filed in accordance with the Courts March 20, 2014 Order. [Rec.
Doc. 75]. No partys counsel authored the brief in whole or in part; no party or partys
counsel contributed money intended to fund preparing or submitting this brief; and no
person other than amici, their members, or their counsel contributed money intended to fund
preparing or submitting the brief.
3

ACLU Foundation of Louisiana has participated in many of the leading constitutional cases
litigated in Louisiana and has a strong organizational commitment to ensuring the fair and equal
treatment of all people in Louisiana.
The National Center for Lesbian Rights (NCLR) is a non-profit legal organization
dedicated to protecting and advancing the civil rights of LGBT people and their families through
litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has
played a leading role in securing fair and equal treatment for LGBT people and their families in
cases across the country involving constitutional and civil rights. NCLR has a particular interest
in protecting same-sex couples and their children. NCLR has served as counsel for numerous
plaintiffs in litigation seeking the freedom to marry and the recognition of same-sex couples
valid marriages in their states of residence, including currently in Kitchen v. Herbert, No. 13-
4178 (10th Cir); Tanco v. Haslam, No. 14-5297 (6th Cir.); and Latta v. Otter, No. 1:13-cv-
00482-CWD (D. Idaho).
Amici fully agree with all grounds Plaintiffs have advanced to strike down
Article XII, Section 15 of the Louisiana Constitution and Article 3520(B) of the Louisiana Civil
Code, which ban recognition of out-of-state marriages of same-sex couples (the marriage
recognition bans or bans). This brief focuses on the infringement of fundamental substantive
due process marriage rights, which requires that the bans be subject to strict scrutiny.
SUMMARY OF ARGUMENT
Recognizing that lesbian and gay individuals share the same fundamental right to marry
that all others enjoy, a growing number of states around the country have eliminated
discrimination in their marriage law, conferring on same-sex couples a dignity and status of
immense import. Windsor, 133 S. Ct. at 2681. Plaintiffs Jon Robicheaux, Derek Robicheaux,
4

Courtney Blanchard, Nadine Blanchard, Lauren Brettner, Jacqueline Brettner, Nicholas Van
Sickels, Andrew Bond, Henry Lambert, Carey Bond, Havard Scott, III and Sergio March Prieto,
as well as the married Forum for Equality Louisiana members all wed in states that opened their
doors to same-sex couples and in so doing sought the full dignity, status, and legal protections
that come with marriage. Had they married different-sex spouses, Louisiana would have
welcomed the newlyweds home with open arms, granting full legal recognition to their
marriages. Louisianas 1999 legislative
3
and 2004 constitutional bans
4
on recognition of out-of-
state marriages for same-sex couples deprive Plaintiffs of the right to due process protected
under the Fourteenth Amendment to the U.S. Constitution. For this reason and the others
asserted in Plaintiffs brief, Louisianas marriage recognition bans should be struck down.
The well-settled fundamental right to marry is about far more than obtaining a marriage
license and having a wedding ceremony important as these are as the gateway to the institution
of marriage. The constitutionally-guaranteed right to marry would be worthless if the
government were free to refuse all recognition to a couples marriage once entered, effectively
annulling the marriage as if it had never occurred. Only when the wedding is over, the guests
are gone, and the couple returns home as spouses, does marriage as a way of life commence.
Griswold v. Connecticut, 381 U.S. 479, 486 (1965). In the words of the Supreme Court,
marriage is an enduring bond, a commitment to remain together for better or for worse, a
bilateral loyalty, an association for [a] noble . . . purpose. Id. This constitutionally-protected
status is a far-reaching legal acknowledgment of the intimate relationship between two people,
Windsor, 133 S. Ct. at 2692, a commitment of enormous import that spouses carry wherever they
go throughout their married lives. But as soon as married same-sex couples set foot in

3
See La. Civ. Code art. 3520(B).
4
See La. Const. art. XII, 15.
5

Louisiana, the States marriage recognition bans strip them of their rights and dignity as married
spouses. The bans strike at the heart of the right to be married, violating the fundamental due
process and equal protection rights of lesbian and gay spouses.
Defendant wrongly attempts to recast the right to marry asserted here as a novel right
to marry a person of the same sex. Loving v. Virginia, 388 U.S. 1 (1967), establishes that a state
violates its residents right to marry if it refuses recognition to their marriages based on
unjustified disagreement with a persons choice of spouse, no matter how steeped in history and
tradition that disagreement is. In this respect, Loving is but one in a long line of cases
establishing that courts define fundamental rights by the nature of the liberty sought, not the
identity of the person invoking it. And this point is underscored, not undermined, by
Washington v. Glucksberg, which exhorts courts to rely on guideposts for responsible
decisionmaking. 521 U.S. 702, 720 (1997).
Marriage is an enduring relationship carrying tremendous legal, financial, cultural, and
personal significance for any couple who enters into it. A married couple can expect to have
myriad interactions with governments, private parties, and one another over the course of the
marriage, and even after the death of one spouse. Throughout these interactions, a persons
status as a present or former spouse remains critical. In recognition of the monumental
importance of this enduring status, the settled rule applied for centuries throughout our nation
has been to accord universal recognition across state lines to a marriage valid where celebrated,
even if the marriage could not be legally celebrated in the forum jurisdiction. This universal rule
of interstate marriage recognition, while cast as a comity rather than a constitutional principle, is
an essential point in the constellation of protections accorded the institution of marriage. As the
Supreme Court understood in ruling that Virginias ban on recognition of the Lovings out-of-
6

state interracial marriage violated due process, Loving, 388 U.S. at 12, the recognition by one
government of a marital status obtained in another is implicit in the concept of ordered liberty,
Glucksberg, 521 U.S. at 721 (internal quotations and citations omitted).
A persons right to carry his or her marriage and marital status wherever the person goes
in this nation accords spouses and their children the dignity of a legally respected and universally
understood relationship. It ensures predictability and stability for the spouses, their children,
employers, and others with whom the couple interacts. This right reflects the intent and
expectations of couples who have legally married. It also reflects the reality that the state of
celebration has bestowed on the couple the enduring status of being married under its laws.
Under the traditional place-of-celebration standard, any couple that has entered into a valid
marriage can count on being respected as married by the federal and state governments,
regardless of where the couple may live or relocate.
Although the states longstanding, uniform place-of-celebration rule has commonly
included an articulated exception for marriages contrary to the strong public policy of the state,
in practice, this exception has rarely applied to void a marriage valid where entered. Our
nations history and tradition of extensive state recognition of marriages entered elsewhere, even
if the marriages could not have been legally obtained in the forum state, reflects the depth of the
liberty interest we all share in having our marriages universally respected.
Furthermore, neither the Full Faith and Credit Clause nor Section 2 of the Defense of
Marriage Act (DOMA), 28 U.S.C. 1738C, insulates Louisianas marriage recognition bans
from due process challenge.

7

ARGUMENT
I. The Fundamental Right To Marry Applies To Same-Sex Spouses.
This Court can decide this case without reaching the fundamental right to marry itself
and the protection it affords to same-sex couples. Nonetheless, Louisianas marriage recognition
bans strike at the heart of the fundamental right to marry, purporting to erase Plaintiffs
marriages.
In case after case, the Supreme Court has reaffirmed not only the right to enter into the
institution of marriage, but also an aspect of that right which makes it most cherished and
meaningful, the right to marry the one you love. The Court has made clear that freedom of
choice of whom to marry is a critical component of that right. These cases demonstrate the
Constitutions respect for our autonomy to make the personal decisions at stake here decisions
about with whom a person will build a life and a family. Moreover, the Supreme Court has
consistently adhered to the principle that a fundamental right, once recognized, properly belongs
to everyone. Henry, 2014 U.S. Dist. LEXIS 51211, at *29. Fundamental rights are thus
defined by the nature of the liberty sought, not by who seeks to exercise the liberty.
The right to marry has long been recognized as fundamental, protected under the due
process guarantee, because deciding whether and whom to marry is exactly the kind of personal
matter about which government should have little say. Webster v. Reproductive Health Servs.,
492 U.S. 490, 564-65 (1989) (Stevens, J., concurring in part and dissenting in part) (freedom of
personal choice in matters of marriage and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment (emphasis added)); Zablocki v. Redhail, 434 U.S.
374, 387 (1978) (finding burden on right to marry unconstitutional because it infringed freedom
of choice in an area in which we have held such freedom to be fundamental (emphasis added));
Moore v. East Cleveland, 431 U.S. 494, 499 (1977). Indeed, [t]he freedom to marry has long
8

been recognized as one of the vital personal rights essential to the orderly pursuit of happiness
by free men. Loving, 388 U.S. at 12 (citation omitted).
Because the right to make personal decisions central to marriage would have little
meaning if the government dictated ones marriage partner, courts have placed special emphasis
on protecting ones free choice of spouse. [T]he regulation of constitutionally protected
decisions, such as where a person shall reside or whom he or she shall marry, must be predicated
on legitimate state concerns other than disagreement with the choice the individual has made.
Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (emphasis added); see also Roberts v. United
States Jaycees, 468 U.S. 609, 620 (1984). In keeping with the right to autonomy in deciding
whether and whom to marry, Louisiana imposes very few restrictions on who can marry.
5

The scope of a fundamental right is defined by the attributes of the right itself, and not
the identity of the people who seek to exercise it or who have been excluded from doing so in the
past. The Supreme Court has adhered to the principle that a fundamental right, once recognized,
properly belongs to everyone regardless of whether a particular claimant can point to a
historical tradition supporting the claimants ability to exercise that right. For example, in
Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982), the Supreme Court held that an individual
involuntarily committed to a custodial facility because of a disability retained liberty interests,
including the right to freedom from bodily restraint. The Court thus departed from the
longstanding tradition in which people with serious disabilities were viewed as not sharing such
substantive due process rights and were routinely subjected to bodily restraints. See also
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (liberty interest in controlling the decision whether

5
Louisiana permits persons to marry anyone who is not an ascendant or descendant, nor
closer than the fourth degree, so long as both are unmarried. See La. Civ. Code arts. 88 and
90.
9

or not to have children, previously recognized for married persons in Griswold, extended equally
to unmarried persons).
Specifically in the context of the fundamental right to marry, the Supreme Court has
rejected attempts to reframe the right narrowly so as to include only those previously
acknowledged to enjoy that liberty. Thus, the fundamental right to marry could no more be a
right to same-sex marriage than the right enforced in Loving was to interracial marriage, 388
U.S. 1; or in Turner v. Safley to prisoner marriage, 482 U.S. 78 (1987). And, indeed, neither
interracial marriages nor marriages involving inmates had any longstanding support in our
nations traditions. See Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992)
([I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt
correct in finding it to be an aspect of liberty protected against state interference by the
substantive component of the Due Process Clause in Loving . . . .); Virginia L. Hardwick,
Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60
N.Y.U. L. Rev. 275, 277-79 (1985) (right to marry as traditionally understood did not extend to
prisoners).
6

The argument that same-sex couples seek a new right rather than the same right
exercised by others makes the identical mistake of Bowers v. Hardwick, 478 U.S. 186 (1986),
corrected in Lawrence, 539 U.S. 558. In a challenge by a gay man to Georgias sodomy statute,
Bowers recast the right at stake, shared by all, to consensual intimacy with the person of ones
choice, to a claimed fundamental right of homosexuals to engage in sodomy. Id. at 566-67

6
The right to marry traditionally did not include a right to remarriage after divorce, but that
also changed. See Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (violation of due
process to impose fees on indigent as condition to seek divorce, the only way to be free from
prohibition against remarriage). Likewise, after Zablocki, 434 U.S. 374, the right to marry
could not be withheld based on a parents unwillingness or inability to support children from
a prior relationship.
10

(quoting Bowers, 478 U.S. at 190). Significantly, Lawrence overruled Bowers, holding that
Bowerss constricted framing fail[ed] to appreciate the extent of the liberty at stake.
Lawrence, 539 U.S. at 567.
Defendants attempt to limit the fundamental right to marry at issue here to the right to
marry a person of the same sex finds no support in, and indeed is undermined by, Glucksberg,
521 U.S. 702. Glucksberg does not support constricting a long-honored fundamental right to
deny it to those historically excluded from the freedom to exercise it. Glucksberg focused on
liberty interests shared by all individuals, not just those in the majority, and found that the liberty
interest advanced for assistance with suicide was not sufficiently grounded in history to
constitute a fundamental right. It is entirely different, and contrary to constitutional standards, to
define a fundamental right so narrowly as to exclude a group of individuals from sharing it.
Turner, which addressed whether marriage between a prison inmate and an un-
incarcerated person qualifies as a constitutionally protected marital relationship despite
differences from traditional marriages, demonstrates this. Turner, 482 U.S. at 96. Rather than
dismiss the claim in that case because the union would lack physical companionship, sexual
intimacy, and shared short-term goals, the Court unanimously found that many of the incidents
of marriage, like the religious and personal aspects of the marriage commitment, are unaffected
by incarceration and are sufficient to form a constitutionally protected marital relationship in
the prison context. Id. Turner thus definitively established that the fundamental right to marry
does not vanish merely because the state points to an attribute that differs from prevailing
notions of traditional marriage.
7

7
Another way of framing this issue is that the exercise urged by Glucksberg in refining the
asserted right must involve legally relevant limitations. See, e.g., U.S. Citizens Association
v. Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (rejecting plaintiffs assertion that the
11

The history of marriage belies Defendants argument that marriage, as a fundamental
right, is understood only in static terms. For example, marriage laws have undergone substantial
changes in past generations to end subordination of married women and race-based entry
requirements. Marriage laws, through court decisions and legislation, have undergone profound
changes over time and are virtually unrecognizable from the way they operated a century ago.
See generally Nancy F. Cott, Public Vows: A History of Marriage and the Nation (2000).
And yet, couples continue to come together, join their lives, and form new families, and
marriage continues to support and stabilize them. The Supreme Court confirmed in Windsor that
the due process guarantee protects the rights of same-sex couples to the essential dignity,
security, and tangible legal and financial protections that marriage offers. See 133 S. Ct. at
2694-97.
II. Louisianas Refusal To Recognize Existing Marriages Of Same-Sex Couples Entered Out
Of State Violates Constitutionally Protected Fundamental Marriage Rights.

The constitutional due process right not to be deprived of ones already-existing legal
marriage and its attendant benefits and protections is a deeply-rooted aspect of the due process
protections long accorded to existing marital, family, and intimate relationships. Obergefell v.
Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013)
8
; see also Glucksberg, 521 U.S. at 720.

Affordable Care Acts individual mandate implicate[s] the fundamental liberty right . . . to
refuse unwanted medical care, and instead recognizing the plaintiffs fiscally-focused
request as protection of economic rights through substantive due process). Here,
Defendant can offer nothing to justify characterizing the right at issue as a new right to
same-sex marriage, except that overwhelming discrimination prevented lesbian and gay
couples from laying claim to their right to marry until recent years. Louisianas asserted
justifications for differential treatment, proceeding cautiously and preserving the tradition of
man-woman marriage, merely presuppose rather than justify the legitimacy of the
historical limitation in the first place.

8
See also Henry, 2014 U.S. Dist. LEXIS 51211, at *29-30; De Leon v. Perry, No. SA-13-
CA-00982-OLG, 2014 U.S. Dist. LEXIS 26236, at *62 (W.D. Tex. Feb. 26, 2014) (noting
12

The long line of decisions recognizing the significance of, and protections accorded, marital
relationships would be meaningless if states could unilaterally refuse to recognize the marriages,
once entered, of disfavored groups, thereby depriving these spouses of their constitutionally-
protected liberty.
As the Supreme Court noted in Glucksberg, our [n]ations history, legal traditions, and
practices provide guideposts to discern the contours of constitutionally-protected fundamental
liberties. 521 U.S. at 721; see also Lawrence, 539 U.S. at 571-72 ([O]ur laws and traditions in
the past half century are of most relevance here.). The Due Process Clause protects rights
implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they
were sacrificed. Glucksberg, 521 U.S. at 720-21 (internal quotations and citation omitted).
Throughout our nations history, legal traditions, and practices, marriages, once entered, have
been cloaked with a wide swath of protections. These range from rights in matters of sexual
intimacy and reproduction, Griswold, 381 U.S. 479; to marital presumptions protecting the legal
rights of both spouses as parents from intrusions even by a childs genetic parent, Michael H. v.
Gerald D., 491 U.S. 110, 124 (1989); to access to government benefits (e.g. Social Security
benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less
tangible benefits. Turner, 482 U.S. at 96. See also Zablocki, 434 U.S. at 397 n.1 (1978)
(Powell, J., concurring) ([T]here is a sphere of privacy or autonomy surrounding an existing
marital relationship into which the State may not lightly intrude . . . (emphasis added)).

Windsors holding that out-of-state marriage recognition . . . was a right protected under the
Constitution, and concluding likelihood of success that plaintiffs will demonstrate Texas
lacked even rational basis for withholding recognition to same-sex couples marriages, in
violation of due process); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 U.S. Dist. LEXIS
17457, at *22 (W.D. Ky. Feb. 12, 2014) (finding reasoning in Windsor about the legitimacy
of laws excluding recognition of same-sex marriages [] instructive, and concluding that
Kentucky laws denying recognition of valid out-of-state marriages of same-sex couples are
unconstitutional).
13

Notably, the Supreme Court has made emphatically clear that couples have fundamental
vested rights to have their marriages accorded legal recognition and protection not just in the
jurisdiction where entered, but also across state lines. In Loving, the Supreme Court struck down
not only Virginias law prohibiting interracial marriages within the state, but also its statutes
denying recognition to and criminally punishing such marriages entered outside the state. 388
U.S. at 4, 12. It did so in a case involving a couple already married, who had celebrated their
nuptials in the District of Columbia and then been prosecuted for marrying out of state on return
to their Virginia home. Id. at 2-3. Moreover, the couple had purposely evaded their domicile
states law in order to enter into a marriage expressly prohibited and denied recognition there.
Significantly, the Court held that Virginias statutory scheme, including its penalties on out-of-
state marriages and voiding of marriages obtained elsewhere, deprive[d] the Lovings of liberty
without due process of law in violation of the Due Process Clause of the Fourteenth
Amendment. Id. at 12.
The expectation that ones marriage, once entered, will be respected throughout the land
is indisputably deeply rooted in [o]ur Nations history, legal traditions, and practices.
Glucksberg, 521 U.S. at 721. It is so elemental as to be implicit in the concept of ordered
liberty. Id. Historically, certainty that a marital status once obtained will be universally
recognized has been understood to be of fundamental importance both to the individual and to
society more broadly: for the peace of the world, for the prosperity of its respective
communities, for the well-being of families, for virtue in social life, for good morals, for
religion, for everything held dear by the race of man in common, it is necessary there should be
one universal rule whereby to determine whether parties are to be regarded as married or not. 1
Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation 856, at 369
14

(1891). As one federal court put it 65 years ago, the policy of the civilized world [] is to sustain
marriages, not to upset them. Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn.
1949).
Accordingly, interstate recognition of marriage has been a defining and essential feature
of American law, enshrined in common law and legislation as a pillar of domestic relations
jurisprudence. The longstanding, universal rule of marriage recognition dictates that a marriage
valid where celebrated is valid everywhere. See, e.g., Joseph Story, Commentaries on the
Conflict of Laws 113, at 187 (8th ed. 1883) (The general principle certainly is . . . that . . .
marriage is decided by the law of the place where it is celebrated.); Fletcher W. Battershall, The
Law of Domestic Relations in the State of New York 7-8 (1910) (describing the universal
practice of civilized nations that the permission or prohibition of particular marriages, of right
belongs to the country where the marriage is celebrated).
Enforcement of this universal rule has long served public policy, common morality, and
the comity of nations. James Schouler, A Treatise on the Law of Domestic Relations 47 (2d ed.
1874). To this day, the place-of-celebration rule advances critical functions in a nation where a
married couple may live in, move through, and interact with multiple state sovereigns whose
marriage laws may vary. See Williams v. North Carolina, 317 U.S. 287, 299 (1942) (the
prospect of being married in one state and unmarried in another is one of the most perplexing
and distressing complication[s] in the domestic relations of . . . citizens. (internal quotations and
citation omitted));
9
In re Lenherr Estate, 314 A.2d 255, 258 (Pa. 1974) (In an age of

9
Williams, requiring North Carolina to give full faith and credit to a Nevada divorce decree
in conflict with North Carolina public policy, emphasized the crucial reasons a single states
laws must dictate an ongoing status of such personal significance. See 317 U.S. at 300-01.
The Supreme Court in Williams recognized the importance to the couple of a single clear
answer as to their marital status that would apply both in Nevada and North Carolina, and
15

widespread travel and ease of mobility, it would create inordinate confusion and defy the
reasonable expectations of citizens whose marriage is valid in one state to hold that marriage
invalid elsewhere.).
The rule of recognition protects from the serious harm, disruption, and instability that
results if those who are legally married cannot rely upon their marital status. Under the rule, the
couple can plan a future together in which their familys legal status will remain intact and
permanent, regardless of the local government with which they may interact. It also dissuades
married couples from disavowing their own obligations to each other and to third parties. A
couple knits their lives together through marriage, making promises of support and care for
better or for worse. Griswold, 381 U.S. at 486. The place-of-celebration principle ensures that
married spouses cannot repudiate their marital status and their obligations based on where they
are located. It prevents such perverse results as allowing a person who is legally married in
one state to be treated as single and enter into a new marriage with a second spouse in another
state. Joanna Grossman, Resurrecting Comity: Revising the Problem of Non-Uniform Marriage
Laws, 84 Or. L. Rev. 433, 472 (2005). This venerable rule confirms the parties expectations, it
provides stability in an area where stability (because of children and property) is very important,
and it avoids the potentially hideous problems that would arise if the legality of a marriage
varied from state to state. William M. Richman & William L. Reynolds, Understanding
Conflict of Laws 119[c] (3d ed. 2002); see also Joseph William Singer, Same Sex Marriage,
Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 4-6 (2005)
(summarizing interests underlying place-of-celebration rule).

throughout the nation. The guarantee of due process likewise prohibits subjecting spouses
to the discriminatory refusal of some states to honor their lawfully obtained marital statuses.
16

This principle is so strong that it has commonly been applied by domicile states to
validate marriages even when couples purposely left the home state to evade its marriage
prohibition and marry in a more favorable jurisdiction. These couples nevertheless returned
home entitled to recognition of their marriages. Amid the confusion of state nuptial policies,
the courts constructed a series of rules that sanctioned the evasion of most statutory controls on
matrimony. [J]udges gave their blessing to couples who shopped for a forum that would
accept their match. Michael Grossberg, Governing the Hearth: Law and the Family in
Nineteenth-Century America 295-96 (1985).
To be sure, there is a stated exception to the place-of-celebration rule where the out-of-
state marriage would violate strong public policies of the domicile state. Yet in practice, the
public policy exception has been infrequently invoked to invalidate a marriage valid where
entered. Instead, courts repeatedly indicate that they have the discretion to use such a public
policy exception but then validate the out-of-state marriage following the general rule in favor of
recognition. Barbara J. Cox, Same-Sex Marriage and the Public Policy Exception in Choice-of-
Law: Does It Really Exist?, 16 Quinnipiac L. Rev. 61, 66 (1996). Although cases invalidating
out-of-state marriages exist, by widespread practice in this country, [courts] have been quite
reluctant to use the exception and quite liberal in recognizing marriages celebrated in other
states. Id. at 68. The mere fact that a marriage is absolutely null when contracted in Louisiana
does not mean that such a marriage validly performed elsewhere is automatically invalid as
violative of a strong public policy. Ghassemi v. Ghassemi, 998 So. 2d 731, 743 (La. Ct. App.
2008).
10

10
Louisianas Supreme Court did decline to validate a Mississippi common law marriage,
the status of which it questioned initially under Mississippis law, after finding the marriage
was contracted in bad faith. Brinson v. Brinson, 233 La. 417, 96 So. 2d 653 (1957).
17

Indeed, invalidation has generally been reserved for marriages that violate such strong
principles of state public policy that the parties to the marriage are subject to criminal
prosecution. See, e.g., Rhodes v. McAfee, 457 S.W.2d 522, 523-24 (Tenn. 1970) (out-of-state
marriage between ex-stepfather and stepdaughter was void where such marriage could be
prosecuted as felony in Tennessee); State v. Bell, 66 Tenn. 9 (1872) (refusing to recognize out-
of-state interracial marriage, then criminalized in Tennessee, as defense to violation of
Tennessee fornication law).
The bans at issue in this case are analogous to the ignoble state bans on recognition of
interracial marriages, struck down in 1967 in Loving. State anti-miscegenation laws were the
other historically noteworthy national departure from the prevailing place-of-celebration
standard and the constitutional due process principles it advances. Only in those states with
anti-miscegenation statutes can one find consistent and repeated use of public policy exceptions
to refuse to recognize otherwise valid out-of-state marriages. Once the Supreme Court outlawed
such refusals as unconstitutional, the public policy exception fell into disuse.
11
Cox, 16
Quinnipiac L. Rev. at 67 (footnotes omitted). Indeed, until marriage for same-sex couples
entered the national stage, the public policy exception had grown nearly obsolete. Singer, 1
Stan. J. C.R. & C.L. at 40; see also Andrew Koppelman, Symposium, Interstate Recognition of
Same-Sex Marriages and Civil Unions: A Handbook for Judges, 153 U. Pa. L. Rev. 2143, 2148
(2005) (public policy exception had become archaic).
Thus in historical and contemporary times, our nation has followed a universal standard
of honoring marriages wherever entered, even when the marriage was contrary to the domicile

11
Notwithstanding bans on recognition of interracial marriages, the force of the principle of
universal recognition led some state courts nonetheless to accord recognition to such
marriages entered out of state. See, e.g., Miller v. Lucks, 36 So. 2d 140 (Miss. 1948).
18

states public policy and express law. This legal tradition has nurtured and protected validly-
entered marriages, consistent with the constitutional protections due to the enduring and
intimate status of marriage. Louisianas marriage recognition bans, categorically withholding
recognition to one class of marriages, dramatically break from this tradition, with only our
nations unconstitutional legacy of interracial marriage bans for precedent. They represent
[d]iscriminations of an unusual character, departing from Louisianas and the nations
history and tradition of affording legal respect to marriages validly entered in other
jurisdictions. Windsor, 133 S. Ct. at 2692 (citation omitted); see also Lawrence, 539 U.S. at
568-73 (relying on historical lack of enforcement of sodomy bans and absence of laws singling
out same-sex couples for punishment, as well as growing obsolescence of bans on sexual
intimacy, as guideposts in finding state sodomy prohibitions unconstitutional).
12

III. Neither The Full Faith And Credit Clause Nor Section 2 Of DOMA Excuses Louisiana's
Violation Of Plaintiffs Due Process Rights.

Contrary to Defendants contentions, neither the Full Faith and Credit Clause nor Section
2 of DOMA, promulgated under that Clause, is a defense to Louisianas denial of recognition to
married same-sex couples. See Defendants Memorandum at 8-9.
The Full Faith and Credit Clause does not authorize Congress to enact discriminatory
provisions violating independent constitutional rights. The power the Constitution grants it also
restrains. And though Congress has great authority to design laws to fit its own conception of
sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth

12
Louisianas bans also infringe on other related fundamental liberty interests in autonomy
over personal decisions relating to . . . family relationships, Lawrence, 539 U.S. at 573;
see also Santosky v. Kramer, 455 U.S. 745, 753 (1982), as well as parenting rights, by
precluding same-sex married couples with children from securing legal recognition of their
parent-child relationships through established legal mechanisms available to married
parents, see Henry, 2014 U.S. Dist. LEXIS 51211, at *30-31.
19

Amendment. Windsor, 133 S. Ct. at 2695. The Supreme Court has long maintained that [i]f
there be any conflict between constitutional provisions, the one[s] found in the amendments
must control, under the well-understood rule that the last expression of the will of the lawmaker
prevails over an earlier one. Schick v. United States, 195 U.S. 65, 68-69 (1904).
Congress thus could no more have used its powers under the Full Faith and Credit Clause
to insulate the marriage recognition ban in Loving from due process and equal protection
requirements than it can insulate these marriage recognition bans through Section 2 of
DOMA. Congress has no affirmative power to authorize the States to violate the Fourteenth
Amendment and is implicitly prohibited from passing legislation that purports to validate any
such violation. Saenz v. Roe, 526 U.S. 489, 508 (1999); see also Graham v. Richardson, 403
U.S. 365, 382 (1971) (Congress does not have the power to authorize the individual States to
violate the Equal Protection Clause.); De Leon, 2014 U.S. Dist. LEXIS 26236, at *64-65
(rejecting claim that Section 2 of DOMA permits Texas to refuse to recognize out-of-state
marriages between persons of the same sex).
Neither the Full Faith and Credit Clause nor Section 2 of DOMA justifies the denial of
married same-sex spouses fundamental right to recognition of their marriages.
IV. Louisianas Marriage Recognition Bans Are Subject To Strict Scrutiny.

The marriage recognition bans cannot survive any level of scrutiny and so violate the
guarantee of due process, however in that the rights infringed are fundamental marriage rights,
strict scrutiny should be applied to determine whether the prohibition on recognition is
necessary to promote a compelling state interest. Reno v. Flores, 507 U.S. 292, 302 (1993)
(law restricting fundamental rights must be narrowly tailored to serve a compelling state
interest).
20

CONCLUSION
This court should find unconstitutional Louisianas bans on recognition of marriages
validly entered in another jurisdiction, and permanently enjoin their enforcement.

Dated: May 12, 2014
/s/ Justin P. Harrison
Justin P. Harrison (La Bar No. 33575)
Legal Director
ACLU Foundation of Louisiana
P.O. Box 56157
Tel. (504) 522-0628
Email: jharrison@laaclu.org

Attorney for Amici Curiae

21


I, Justin P. Harrison, hereby certify that on May 12, 2014, the foregoing document was
filed with the Clerk of Court using the CM/ECF system, which will automatically send a copy to
the following:
Richard Gerard Perque
Law Office of Richard G. Perque, LLC
700 Camp St.
New Orleans, LA 70130
504-681-2003
richard@perquelaw.com

Scott J Spivey, Esq
A Professional Law Corporation
815 Dauphine Street, Suite D
504-684-4904
scott@spiveyesq.com

Attorneys for Plaintiffs
Stuart Kyle Duncan
Louisiana Department of Justice
P. O. Box 94005
Baton Rouge, LA 70804-9005
202-714-9492
kduncan@duncanpllc.com

Attorney for Defendants

Dated: May 12, 2014
/s/ Justin P. Harrison
Justin P. Harrison (La Bar No. 33575)

JONATHAN P. ROBICHEAUX, et
al.,

Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)

JUDGE MARTIN L.C.
FELDMAN MAGISTRATE
MICHAEL NORTH

REF: ALL CASES

BRIEF OF AMICUS CURIAE MARRIAGE LAW FOUNDATION

Ben E. Clayton
La. State Bar Assn. No. 17512
Clayton Law Firm, LLC, Suite D
200 Commercial Square Road
Slidell, LA 70461
985-863-3065 (phone)
985-863-7707 (fax)
benclayt@bellsouth.net
Attorney for Amicus Curiae

May 12, 2014
ii

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iii
INTEREST OF AMICUS CURIAE ............................................................................... 1
ARGUMENT .................................................................................................................. 1
I. This Court Should Not Create A Federal Intrusion on State Power and
Disrupt the Federal Balance by Reading Into the Constitution a Mandate to
Redefine Marriage. ........................................................................................................ 1
II. Protecting Federalism is a Compelling Interest that Justifies Non-Interference
by the Federal Courts with the States Sovereign Authority to Regulate Marriages. 4
A. Federalism Promotes the Self-Determination of the Citizens of the States. ........ 5
B. Federalism Promotes Interstate Pluralism with Its Associated Benefits. ........... 8
CONCLUSION ............................................................................................................. 11

iii


Cases
Alden v. Maine, 527 U.S. 706, 758 (1999) ..................................................................... 4
Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) ........................................... 5
Bond v. United States, 131 S.Ct. 2355, 2364 (2011) ................................................ 4, 7
Chandler v. Florida, 449 US 560, 582 (1981) ............................................................. 10
District Attorneys Office for the Third Judicial District v. Osborne, 557 U.S. 52, 73
note 4 (2009) ............................................................................................................... 2
Elk Grove Unified School District v. Newdow, 542 U.S. 1, 12 (2004) ......................... 2
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 75 (1938) ....................................................... 5
Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) .......................................................... 1, 5
Haddock v. Haddock, 201 U. S. 562, 575 (1906) ........................................................... 3
In re Winship, 397 U.S. 358, 385 (1970) ....................................................................... 6
Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................ 4
Miller v. California, 413 U.S. 15, 30 (1973) ................................................................ 11
National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2577
(2012) .......................................................................................................................... 2
New State Ice Co. v. Liebmann, 285 US 262, 311 (1932) ............................................. 9
Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383384 (1930) ..................................... 3
Oregon v. Ice, 555 U.S. 160, 171 (2009) ........................................................................ 9
San Antonio School District v. Rodriguez, 411 U.S. 1, 50 (1973) ................................ 9
Schuette v. BAMN, 572 U.S. __ (2014) ..................................................................... 7, 8
Shelby Co. v. Holder 133 S. Ct 2612, 2623 (2013) ........................................................ 5
Turner v. Safley, 482 U.S. 78 (1987) ............................................................................. 4
U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) ................................... 4
United States v. Comstock, 560 U.S. 1951, 1967 (2010) .............................................. 2
United States v. Lopez, 514 U.S. 549, 576 (1995) .................................................... 6, 9
United States v. Windsor, 133 S. Ct. 2675, 2692 (2013) .................................. 3, 4, 6, 7
Zablocki v Redhail, 434 U.S. 374 (1978) ....................................................................... 4
Other Authorities
JAMES MCLELLAN, LIBERTY, ORDER, AND JUSTICE 316 (3d ed. 2000) ......................... 10
James Wilson Replies to Findley, Dec. 1, 1787, in 1 DEBATES ON THE CONSTITUTION
820 (Bernard Bailyn ed., 1993) .................................................................................. 2
Jeffrey L. Rensberger, Interstate Pluralism: The Role of Federalism in the Same-
Sex Marriage Debate 2008 BYU L. REV. 1703 .................................................... 9, 10
John O. McGinnis, Reviving Tocquevilles America: The Rehnquist Courts
Jurisprudence of Social Discovery 90 CAL. L. REV. 485, 510 (2002) ....................... 10
ROBERT F. NAGEL, THE IMPLOSION OF AMERICAN FEDERALISM 32 (2001) ..................... 5
THE FEDERALIST No. 45, at 241 (George W. Carey & James McClellan, eds. 2001) ... 2

1

INTEREST OF AMICUS CURIAE

In scholarship and advocacy, the Marriage Law Foundation and its officers
have consistently sought to explain and defend the nearly universal and time-tested
understanding of marriage as an institution uniting a man and a woman as
husband and wife. Extensive research and publication have allowed for firm
conclusions about the meaning and nature of marriage and about the appropriate
setting for resolution of disputes about the law of marriage. This brief addresses
this latter point and explains why allowing normal political processes in the states
to decide this issue is the appropriate constitutional response to a claim that the
federal courts should mandate a redefinition of marriage.
ARGUMENT
I. This Court Should Not Create A Federal Intrusion on State Power and
Disrupt the Federal Balance by Reading Into the Constitution a
Mandate to Redefine Marriage.

As the U.S. Supreme Court has explained, our Constitution establishes a
system of dual sovereignty between the States and the Federal Government.
Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). The constitutional system of
federalism rests on two conceptual pillars. First is that the powers of the national
government are delegated rather than inherent powers. Second is that the powers
of the States are reserved powers. As James Madison explained: The powers
delegated by the proposed constitution to the federal government, are few and
defined. Those which are to remain in the state governments, are numerous and
2

indefinite. THE FEDERALIST No. 45, at 241 (George W. Carey & James McClellan,
eds. 2001). This system is founded on the understanding that the people are the
source of authority [and] the consequence is, that they . . . can distribute one portion
of power, to the more contracted circle, called state governments: they can also
furnish another proportion to the government of the United States. James Wilson
Replies to Findley, Dec. 1, 1787, in 1 DEBATES ON THE CONSTITUTION 820 (Bernard
Bailyn ed., 1993). In our federal system, the National Government possesses only
limited powers; the States and the people retain the remainder. National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2577 (2012).
Under our federal system, the powers reserved to the States consist of the
whole, undefined residuum of power remaining after taking account of powers
granted to the National Government. United States v. Comstock, 560 U.S. 1951,
1967 (2010) (Kennedy, J., concurring).
For this court to rule that the United States Constitution mandates that the
State redefine marriage would unnecessarily federalize a question that is
undoubtedly within the residuum of power reserved to the states. As the Supreme
Court has noted: One of the principal areas in which this Court has customarily
declined to intervene is the real of domestic relations. Elk Grove Unified School
District v. Newdow, 542 U.S. 1, 12 (2004). To intervene in state regulation of
marriage would thrust the Federal Judiciary into an area previously left to state
courts and legislatures. District Attorneys Office for the Third Judicial District v.
Osborne, 557 U.S. 52, 73 note 4 (2009). It would create a federal intrusion on state
3

power and disrupt[] the federal balance. United States v. Windsor, 133 S. Ct.
2675, 2692 (2013). All without any clear textual or precedential direction to do so.
As the Supreme Court forcefully reiterated last term: By history and
tradition the definition and regulation of marriage . . . has been treated as being
within the authority and realm of the separate States. Id. at 2689-2690. The Court
noted [t]he recognition of civil marriages is central to state domestic relations law
applicable to its residents and citizens. Id. at 2691. Further, [t]he definition of
marriage is the foundation of the States broader authority to regulate the subject of
domestic relations with respect to the [p]rotection of offspring, property interests,
and the enforcement of marital responsibilities. Id.
It has been so since the beginning: The significance of state responsibilities
for the definition and regulation of marriage dates to the Nations beginning; for
when the Constitution was adopted the common understanding was that the
domestic relations of husband and wife and parent and child were matters reserved
to the States.

Id. at 2680-2681 (quoting Ohio ex rel. Popovici v. Agler, 280 U. S.
379, 383384 (1930)). The Court explained that, the states, at the time of the
adoption of the Constitution, possessed full power over the subject of marriage and
divorce . . . [and] the Constitution delegated no authority to the Government of the
United States on the subject of marriage and divorce. Id. at 2691 (quoting Haddock
v. Haddock, 201 U. S. 562, 575 (1906)).
Consistent with this allocation of authority, the Federal Government,
through our history, has deferred to state law policy decisions with respect to
4

domestic relations. Id. Thus, it is a 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
1
, from one
State to the next. Id. at 2692.
There is no reason for this court to depart from this long established
precept by holding that the federal courts now have the authority to superintend
the domestic relations laws of the states.
II. Protecting Federalism is a Compelling Interest that Justifies Non-
Interference by the Federal Courts with the States Sovereign Authority to
Regulate Marriages.

Our federal system is premised on the counterintuitive insight, that freedom
is enhanced by the creation of two governments, not one. Bond v. United States,
131 S.Ct. 2355, 2364 (2011) (quoting Alden v. Maine, 527 U.S. 706, 758
(1999)(Kennedy, J., concurring)). As Justice Kennedy has noted, [t]he Framers
split the atom of sovereignty, U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779,
838 (1995) (Kennedy, J., concurring), and concluded that allocation of powers
between the National Government and the States enhances freedom, first by
protecting the integrity of the governments themselves, and second by protecting
the people, from whom all governmental powers are derived. Bond, 131 S. Ct. at
2364.

1
The constitutional guarantees referenced are not applicable here since all of the cases that have
constrained the states regulation of marriage have involved laws that prevented individuals
otherwise qualified for marriage from marrying, and have not gone to the essentials of what
marriage means as the claim in this case does. See Loving v. Virginia, 388 U.S. 1 (1967);
Zablocki v Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987).
5

Federalism preserves the integrity, dignity and residual sovereignty of the
States, and secures to citizens the liberties that derive from the diffusion of
sovereign power. Shelby Co. v. Holder 133 S. Ct 2612, 2623 (2013). This is
important because [w]ithout some degree of sovereign status, states would not
have the capacity to act as a counterpoise to federal power. ROBERT F. NAGEL, THE
IMPLOSION OF AMERICAN FEDERALISM 32 (2001). That is why the federal structure
recognizes and preserves the autonomy and independence of the States. Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 75 (1938). As the Court has explained:
Supervision over either the legislative or the judicial action of the
States is in no case permissible except as to matters by the
Constitution specifically authorized or delegated to the United States.
Any interference with either, except as thus permitted, is an invasion
of the authority of the State and, to that extent, a denial of its
independence. Id. at 79 (quoting Baltimore & O.R. Co. v. Baugh, 149
U.S. 368, 401 (1893) (Field, J., dissenting)) (emphasis added).

This diffusion of powers ensures that citizens may control their own destiny
and that different states may adopt different policies uniquely suited to the desires
and aspirations of the people of those states. As the Supreme Court noted:
This federalist structure of joint sovereigns preserves to the people
numerous advantages. It assures a decentralized government that will
be more sensitive to the diverse needs of a heterogenous society; it
increases opportunity for citizen involvement in democratic processes;
it allows for more innovation and experimentation in government; and
it makes government more responsive by putting the States in
competition for a mobile citizenry. Gregory v. Ashcroft, 501 U.S. 452,
458 (1991).

A. Federalism Promotes the Self-Determination of the Citizens of the States.

This interest in increase[d] opportunity for citizen involvement in
democratic processes is particularly important in a case such as this in which the
6

court is asked to second-guess a decision arrived at through a process which
involved the citizens in their direct and representative capacities. As Justice Black
said, the right of self-government that our Constitution preserves is just as
important as any of the specific individual freedoms preserved in the Bill of Rights.
In re Winship, 397 U.S. 358, 385 (1970) (Black, J., dissenting). As Justice Kennedy
explains, the federalist theory that two governments accord more liberty than one
requires for its realization two distinct and discernible lines of political
accountability: one between the citizens and the Federal Government; the second
between the citizens and the States. United States v. Lopez, 514 U.S. 549, 576
(1995) (Kennedy, J., concurring). He continued:
Were the Federal Government to take over the regulation of entire
areas of traditional state concern, areas having nothing to do with the
regulation of commercial activities, the boundaries between the
spheres of federal and state authority would blur and political
responsibility would become illusory. The resultant inability to hold
either branch of the government answerable to the citizens is more
dangerous even than devolving too much authority to the remote
central power. Id. (citations omitted).

The Supreme Courts recent decision striking down the federal Defense of
Marriage Act, which the Court said departs from this history and tradition of
reliance on state law to define marriage, stresses the important value of political
self-determination. United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). In that
case, the Court spoke of the New York legislatures decision in terms that stressed
the importance of citizen involvement: After a statewide deliberative process that
enabled its citizens to discuss and weigh arguments for and against same-sex
marriage, New York acted to enlarge the definition of marriage. Id. at 2689. The
7

Court said the decision reflects . . . the communitys considered perspective (id. at
2692-2693) and that New York was responding to the initiative of those who
[sought] a voice in shaping the destiny of their own times. Id. at 2692 (quoting
Bond v. United States, 131 S.Ct. 2355, 2359 (2011). The majority could not have
been clearer when it said: The dynamics of state government in the federal system
are to allow the formation of consensus respecting the way the members of a
discrete community treat each other in their daily contact and constant interaction
with each other. Id.
This term, the Court has spoken even more emphatically about the
importance of allowing state citizens to set policy on controversial matters. Weeks
ago, a Supreme Court majority upheld a Michigan constitutional amendment
enacted, like the states marriage amendment, [a]fter a statewide debate. Schuette
v. BAMN, 572 U.S. __ (2014), slip op at 2. Writing for the plurality, Justice Kennedy
made clear that the federal courts may not disempower the voters from choosing
which path to follow when enacting policies as an exercise of democratic self-
government. Id. at 13. The plurality characterized the voters action as
exercis[ing] their privilege to enact laws as a basic exercise of their democratic
power. Id. at 15. So, too, with the Amendment challenged in this case. Justice
Kennedys words fit well the Michigan Marriage Amendment: freedom does not
stop with individual rights. Our constitutional system embraces, too, the right of
citizens to debate so they can learn and decide and then, through the political
process, act in concert to try to shape the course of their own times. Id. at 15-16.
8

This is true even though the issue raises difficult and delicate issues and
embraces a difficult subject. Id. Justice Kennedy rejected the idea that the
electorates power must be limited because the people cannot prudently exercise
that power even after a full debate. Id. at 16. To accept this idea would have been
an unprecedented restriction on the exercise of a fundamental right held not just
by one person but by all 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. Id. He
concluded: It is demeaning to the democratic process to presume that the voters are
not capable of deciding an issue of this sensitivity on decent and rational grounds.
Id. at 17. In his concurrence, Justice Breyer explains the Constitution foresees the
ballot box, not the courts, as the normal instrument for resolving differences and
debates about the merits of race-conscious programs. Id. at 3 (Breyer, J,
concurring). This passage too is instructive in this case where the Constitution
foresees the ballot box, not the courts, as the normal instrument for resolving
differences and debates about the merits of preserving marriage as the union of a
husband and wife or redefining it to include same-sex couples.
Clearly, state decisions reflecting the consensus of citizens about a matter as
fundamental as the definition of marriagethe foundation of the family which is, in
turn, the most basic unit of societyought to be entitled to a high degree of respect.
B. Federalism Promotes Interstate Pluralism with Its Associated Benefits.

Beyond the importance of safeguarding local self-government, federalism also
advances interstate pluralism. Interstate pluralism is the feature of our federal
9

system that reflects the ability of each state to establish itself as a distinct
community. It entails the ability to make and enforce choices on foundational
matters such as fundamental ordering of . . . family relations and seeks to protect
each states ability to create and enforce these fundamental orderings and thereby
define its society. Jeffrey L. Rensberger, Interstate Pluralism: The Role of
Federalism in the Same-Sex Marriage Debate 2008 BYU L. REV. 1703, 1728.
Interstate pluralism allows states to experiment with various social and legal
policies free from interference and to reflect the unique preference and attributes of
the state.
As the U.S. Supreme Court has long recognized, the States have an
important role as laboratories for devising solutions to difficult legal problems.
Oregon v. Ice, 555 U.S. 160, 171 (2009). For instance, Justice Brandeis argued: It is
one of the happy incidents of the federal system that a single courageous State may,
if its citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country. New State Ice Co. v. Liebmann,
285 US 262, 311 (1932) (Brandeis. J., dissenting). Justice Kennedy explained the
theory and utility of federalism are revealed when States may perform their role
as laboratories for experimentation to devise various solutions where the best
solution is far from clear. United States v. Lopez, 514 U.S. 549, 581 (1995).
Pluralism also affords some opportunity for experimentation, innovation,
and a healthy competition. San Antonio School District v. Rodriguez, 411 U.S. 1, 50
(1973). It is common in many areas of the law for particular States to be viewed
10

favorably by residents of other States because of the States approach to a variety of
legal issues such as taxation and business regulations as well as domestic relations.
Since interstate pluralism allows for state-to-state differentiation, it encourages
individuals to relocate to take advantage of a particular social policy, be it low
taxes, high employment, a high level of social services, or personal safety.
Rensberger at 1739.
The Supreme Court has said it should not diminish that [experimentation]
role absent impelling reason to do so. Oregon v. Ice, 555 U.S. at 171. This is in
keeping with an earlier statement: We are not empowered by the Constitution to
oversee or harness state procedural experimentation; only when the state action
infringes fundamental guarantees are we authorized to intervene. Chandler v.
Florida, 449 US 560, 582 (1981).
Additionally, as Professor James McLellan notes, federalism protects
minority rightsthe rights of communities or whole regions to maintain their
customs, their diversity and individuality, their self-rule. JAMES MCLELLAN,
LIBERTY, ORDER, AND JUSTICE 316 (3d ed. 2000). Federalism protects the different
preferences and needs of different States. John O. McGinnis, Reviving Tocquevilles
America: The Rehnquist Courts Jurisprudence of Social Discovery 90 CAL. L. REV.
485, 510 (2002). Professor Rensberger explains that it is an empirical fact that in
culture, conditions, and social values, the states are fundamentally different from
one another. Rensberger at 1792. There is no reason these differences may not
appropriately be reflected in State laws.
11

In the context of obscenity regulation the [Supreme] Court explicitly allowed
for diversity within the United States of what is obscene. Id. at 1732. In the case
referred to, the Court said our Nation is simply too big and too diverse for this
Court to reasonably expect that such standards could be articulated for all 50 States
in a single formulation, even assuming the prerequisite consensus exists. Miller v.
California, 413 U.S. 15, 30 (1973). The Court also said: People in different States
vary in their tastes and attitudes, and this diversity is not to be strangled by the
absolutism of imposed uniformity. Id. at 33.
Obviously, strangling the diversity of state marriage policies with uniformity
imposed by the federal courts is an even more substantial threat to the values
advanced by federalism.
CONCLUSION

For the foregoing reasons, amicus curiae respectfully urge this Court to rule
in favor of the constitutionality of Louisianas marriage laws.


/s/ Ben E. Clayton_______________
Ben E. Clayton
May 12, 2014
200 Commercial Square Road
Suite D
Slidell, Louisiana 70461
(985) 863-3065
(985) 863-7707
benclayt@bellsouth.net

Attorney for Amicus Curiae

12


I hereby certify that on May 12, 2014, the foregoing brief was filed with the
Clerk of Court using the Courts CM/ECF system. I further certify that counsel of
record for all parties in this case who are registered CM/ECF users will be served by
the CM/ECF system.
/s/ Ben E. Clayton_______________
Ben E. Clayton
May 12, 2014




Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

BRIEF OF AMICI CURIAE PROFESSORS ALAN J. HAWKINS AND JASON S. CARROLL IN SUPPORT
OF DEFENDANTS
__________________________________________

Daniel "Danny" R. Atkinson, J r.(LA 18103)
Perry, Atkinson, Balhoff, Mengis & Burns,
LLC
2141 Quail Run Dr.
Baton Rouge, LA 70808
Office (225) 767-7730, Direct (225) 767-8864,
Cell (225) 938-5557, Fax (225) 767-7967
Email: Atkinson@pabmb.com
Counsel of Record for Amici Hawkins and
Carroll


2

1

Alan J . Hawkins and J ason S. Carroll are professors of Family Life at Brigham Young
University. Professor Hawkins earned his Ph.D. in Human Development and Family Studies
from Penn State University. Professor Carroll earned his Ph.D. in Family Social Science from
the University of Minnesota. They have studied extensively and published widely on
fatherhood, marital formation and dissolution, interventions to strengthen marriages, and how
marriage as a social institution affects human behavior. Their expertise in these fields will assist
the Courts consideration of the issues presented by this case.
SUMMARY OF THE ARGUMENT
There is no dispute among social scientists that social institutions profoundly affect
human behavior. They provide human relationships with meaning, norms, and patterns, and in
so doing encourage and guide conduct. Nobel Laureate Douglass North has described
institutions as the humanly devised constraints that shape human interaction. DOUGLASS
NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE 3 (1990). That
is their function. And when the definitions and norms that constitute a social institution change,
the behaviors and interactions that the institution shapes also change.
Marriage is societys most enduring and essential institution. From ancient times to the
present, it has shaped and guided sexual, domestic, and familial relations between men, women,
and their children. As with any institution, changing the basic definition and social
understanding of marriagesuch as by abandoning its gendered definitionwill change the

1
No partys counsel authored this brief in whole or in part or contributed money that was intended to
fund preparing or submitting the brief, and no one other than amicus or his counsel contributed money
that was intended to fund preparing or submitting this brief. The views expressed herein are those of the
amici and not necessarily those of Brigham Young University.

3

behavior of men and women in marriage and even affect whether they enter marriage in the first
place. Whether deemed good or bad, redefining marriage away from its historically gendered
purposes will have significant consequences.
We know this, as discussed below, not only as a matter of sound theory, logic, and
common sense but from experience with other changes to marriage and marriage-related
expectations. Specifically, the advent of no-fault divorce changed the legal and social
presumption of permanence in marriage. That change had profound consequences. While
affording adults greater autonomy and facilitating an easier end to dangerous or unhealthy
relationships, it also resulted in increased numbers of divorces from low-conflict marriages,
created a tangible sense of fragility for all marriages, and left more children to be raised without
one of their parents, typically the father, with attendant adverse consequences.
Although it is far too early to know exactly how redefining marriage to include same-sex
couples will change marriage, Professor Hawkins and Professor Carroll demonstrate that such a
significant change will likely further weaken heterosexual mens connection to marriage and
their children. This, in turn, will likely increase the risk that more children will be raised without
the manifest benefits of having their fathers married to their mothers and involved day to day in
their lives. These risks justify States in cautiously hesitating before redefining marriage in non-
gendered terms.
Today, ninety-two percent (92%) of the nations on earth do not permit or recognize
same-sex marriage. Nor do two-thirds of American states. Clearly, defining marriage as the
union of man and woman only is a deeply imbedded cross-social, cross-cultural, cross-national
global experience and expectations.

4

ARGUMENT
I. Marriage Is a Social Institution With Practical Benefits that Depend on Its Social,
Linguistic, and Legal Meaning; Altering that Meaning Will Necessarily Alter Those
Benefits.
A. Marriage is a social institution that exists to encourage important human
behaviors for vital public ends.
Social institutions exist primarily to guide and channel human behavior in ways that
benefit society. Preeminent social anthropologist A. R. Radcliffe-Brown described social
institutions as a means for society to order the interactions of persons in social relationships.
A.R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY 10-11 (1952). In
social institutions, the conduct of persons in their interactions with others is controlled by
norms, rules, or patterns. Id. As a consequence, a person [in a social institution] knows that
he [or she] is expected to behave according to these norms and that the other person should do
the same. Id.
Through such rules, norms, and expectationssome legal, others culturalsocial
institutions become constituted by a web of public meaning. See Victor Nee & Paul Ingram,
Embeddedness and Beyond: Institutions, Exchange, and Social Structure, in THE NEW
INSTITUTIONALISM IN SOCIOLOGY 19 (Mary C. Brinton & Victor Nee eds., 1998) (An institution
is a web of interrelated normsformal and informalgoverning social relationships.). Social
institutions, and the language we use to describe them, in large measure define relationships and
how we understand them and act within them.
[L]anguageor more precisely, normative vocabularyis one of the key
cultural resources supporting and regulating any [social] institution. Nothing is
more essential to the integrity and strength of an institution than a common set of
understandings, a shared body of opinions, about the meaning and purpose of the
institution. And, conversely, nothing is more damaging to the integrity of an
institution than an attack on this common set of understandings with the
consequent fracturing of meaning.

5

Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage As a Social Institution: A Reply
to Andrew Koppelman, 2 U. ST. THOMAS L. J . 33, 52-53 (2004) (quoting Barbara Dafoe
Whitehead, The Experts Story of Marriage 7 (Council on Families in Am. Working Paper No.
WP14, 1992)).
Marriage is a vital institutionfew dispute that. See, e.g., WILLIAM J . DOHERTY ET AL.,
INSTITUTE FOR AM. VALUES, WHY MARRIAGE MATTERS: TWENTY-ONE CONCLUSIONS FROM THE
SOCIAL SCIENCES 8-9 (2002) [hereinafter DOHERTY, WHY MARRIAGE] (At least since the
beginning of recorded history, in all the flourishing varieties of human cultures documented by
anthropologists, marriage has been a universal human institution.). Courts have long
recognized the institutional nature of marriage. See, e.g., Williams v. North Carolina, 317 U.S.
287, 303 (1942) ([T]he marriage relation [is] an institution more basic in our civilization than
any other.).
Thus, although serving many private ends, marriages institutional nature means that it is
not merely a private arrangement. It exists to shape and guide human behavior to serve public
and social purposes. And those public purposes have always centered on uniting a man and a
woman to order their sexual behavior and maximize the welfare of their children:
Marriage exists in virtually every known human society. . . . As a virtually
universal human idea, marriage is about the reproduction of children, families,
and society. . . . [M]arriage across societies is a publicly acknowledged and
supported sexual union which creates kinship obligations and sharing of resources
between men, women, and the children that their sexual union may produce.
DOHERTY, WHY MARRIAGE, supra, at 8-9. That has been the social, linguistic, and legal
meaning of marriage from ancient times and continues in contemporary society. See, e.g., J AMES
Q. WILSON, THE MARRIAGE PROBLEM: HOW OUR CULTURE HAS WEAKENED OUR FAMILIES 24
(2002) ([A] lasting, socially enforced obligation between man and woman that authorizes
sexual congress and the supervision of children exists and has existed [i]n every community

6

and for as far back in time as we can probe); G. ROBINA QUALE, A HISTORY OF MARRIAGE
SYSTEMS 2 (1988) (Marriage, as the socially recognized linking of a specific man to a specific
woman and her offspring, can be found in all societies.); SAMUEL J OHNSON, A DICTIONARY OF
THE ENGLISH LANGUAGE (1755) (marriage is the act of uniting a man and woman for life);
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) (same).
Indeed, until very recently, it was an accepted truth for almost everyone who ever lived,
in any society in which marriage existed, that there could be marriages only between participants
of different sex. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). And until a few years ago,
the law universally reflected and reinforced that historical, cultural, and linguistic understanding.
B. Because marriage is a social institution with a public purpose and not only a
vehicle for accommodating private arrangements, altering its basic definition
will necessarily alter the social benefits it produces.
Abandoning marriages gendered definition and redefining it in non-gendered terms
would fundamentally alter its meaning and many of its the public purposes. That necessarily
follows from the very nature of marriage as a social institution. As Professor Daniel Cere of
McGill University has explained: Definitions matter. They constitute and define authoritative
public knowledge. . . Changing the public meaning of an institution changes the institution.
[The change] inevitably shapes the social understandings, the practices, the goods, and the social
selves sustained and supported by that institution. Monte Neil Stewart, Judicial Redefinition of
Marriage, 21 CAN. J . FAM. L. 11, 76-77 (2004) (footnotes omitted) (quoting Daniel Cere, The
Conjugal Tradition in Postmodernity: The Closure of Public Discourse?, Paper Presented at Re-
visioning Marriage in Postmodern Culture Conference, 4-5 (Dec. 2003)).
The current debate over marriage is frequently portrayed as a decision about whether to
expand or extend the boundaries of marriage to include same-sex couples. This argument
rests on the assumption that the basic nature of marriage will remain largely unchanged by

7

granting marriage status to same-sex partnerships and that all this policy change would do is
absorb same-sex partnerships within the boundaries of marriage and extend the benefits of
marriage to a wider segment of society. Indeed, the very term same-sex marriage implies that
same-sex couples in long-term committed relationships are already a type of marriage that
should be appropriately recognized and labeled as such. But this understanding is flawed in that
it fails to recognize how recognizing same-sex partnerships as marriages would signify a
fundamental change in how marriage is collectively understood and the primary social purposes
for which it exists.
If marriage is redefined to mean the union of two people without regard to gender, it will
lose its inherent focus on children. Such a change, to be sure, would afford a few more children
in same-sex unions the opportunity to grow up in what the law would deem a married household.
But the law would then teach that marriage is essentially an emotional union that has no
inherent connection to procreation and family life. ROBERT GEORGE ET AL., WHAT IS
MARRIAGE? MAN AND WOMAN: A DEFENSE 7 (2012); see United States v. Windsor, 133 S. Ct.
2675, 2715, 2718 (2013) (Alito, J ., dissenting) (citing GEORGE ET AL., supra). In a formal
statement, seventy prominent academics from all relevant disciplines expressed deep[ ]
concerns about the institutional consequences of same-sex marriage for marriage itself,
concluding that [s]ame-sex marriage would further undercut the idea that procreation is
intrinsically connected to marriage and undermine the idea that children need both a mother
and a father, further weakening the societal norm that men should take responsibility for the
children they beget. WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN
PRINCIPLES 18-19 (2006). Defining marriage as merely the union of two persons, in short, would
distill marriage down to its pure close relationship essence. Cere, supra, at 2.

8

Courts and jurists have likewise acknowledged the profound change in social meaning
that would follow a change in marriages basic definition:
We cannot escape the reality that the shared societal meaning of marriage
passed down through the common law into our statutory lawhas always been
the union of a man and a woman. To alter that meaning would render a profound
change in the public consciousness of a social institution of ancient origin.
Lewis v. Harris, 908 A.2d 196, 222 (N.J . 2006); see also Goodridge v. Dept of Pub. Health, 798
N.E.2d 941, 981 (Mass. 2003) (Sosman, J ., dissenting) ([I]t is surely pertinent to the inquiry to
recognize that this proffered change affects not just a load-bearing wall of our social structure
but the very cornerstone of that structure.).
II. Recent Legal Changes to the Institution of Marriage and to Marriage-Related
Expectations Confirm that Altering the Meaning of Marriage Would Likely Have
Unintended and Negative Consequences for Children.
The conclusion that redefining marriage will materially alter the mix of social benefits
marriage provides is supported not only by sound socio-institutional theory, logic, and common
sense but by experience with other changes to marriage and marriage-related expectations. Of
course, no one can know the precise, long-term consequences of redefining marriage to include
same-sex couples. It is simply too soon and the ways it may affect marriage too complex to be
understood without considerably more time and extensive conceptual and empirical inquiry.
J ustice Alito recently made this point:
Past changes in the understanding of marriage . . . have had far-reaching
consequences. But the process by which such consequences come about is
complex, involving the interaction of numerous factors, and tends to occur over
an extended period of time. We can expect something similar to take place if
same-sex marriage becomes widely accepted. The long-term consequences of this
change are not now known and are unlikely to be ascertainable for some time to
come.
Windsor, 133 S. Ct. at 2715 (Alito, J ., dissenting); see also id. at 2715 n.5 (As sociologists have
documented, it sometimes takes decades to document the effects of social changeslike the

9

sharp rise in divorce rates following the advent of no-fault divorceon children and society.
(citing J UDITH S. WALLERSTEIN, ET AL., THE UNEXPECTED LEGACY OF DIVORCE: THE 25 YEAR
LANDMARK STUDY (2000)).
But cautionary lessons can be drawn from recent changes to marriage law and marriage-
related expectations. Perhaps the most relevant lesson comes from an analysis of the impact of
no-fault divorce. No-fault divorce had unintended consequences that weakened marriage and
fatherhood, and thus harmed children, id. at 297; ALLEN M. PARKMAN, GOOD INTENTIONS GONE
AWRY: NO-FAULT DIVORCE AND THE AMERICAN FAMILY 91-150 (2000), and is a likely template
for the effects of same-sex marriage.
There are many important reasons for no-fault divorce laws. The fault-based systems of
the past undoubtedly created many problems and at times serious injustices. Among its benefits,
no-fault divorce affords adults greater autonomy, WALLERSTEIN, ET AL., supra, at 297, and
facilitates the end of dangerous, Betsey Stevenson & J ustin Wolfers, Bargaining in the Shadow
of the Law: Divorce Law and Family Distress, 121 Q.J . ECON. 267, 267 (2006), unhealthy, or
necrotic unions.
Reformers were optimistic that no-fault divorce would have no detrimental effects on
children. In fact, as Barbara Dafoe Whitehead has chronicled, many early experts provided
extensive and intricate rationales for how divorce would benefit childrendivorce for the sake
of the children. BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE: RETHINKING OUR
COMMITMENTS TO MARRIAGE AND FAMILY 81 (1996); see also id. at 84-90 (discussing
predictions of how divorce would benefit children). Empirically, however, this early optimism
has proven short-sighted. See Donald Moir, A New Class of Disadvantaged Children, in IT
TAKES TWO: THE FAMILY IN LAW AND FINANCE 63, 67-68 (Douglas W. Allen & J ohn Richards

10

eds., 1999). Reformers may have reasoned that childrens exposure to harmful parental conflict
would decrease and that their parents would readily find greater happiness that would improve
parenting. But divorce often does not end parental conflict, E. MAVIS HETHERINGTON & J OHN
KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED 138 (2002), and the evidence
suggests that parenting quality declines with divorce, id. at 126-140. Also, most divorces come
from low-conflict marriages. PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK:
GROWING UP IN AN ERA OF FAMILY UPHEAVAL 220 (1997); Paul R. Amato & Bryndl Hohmann-
Marriott, A Comparison of High- and Low-Distress Marriages That End in Divorce, 69 J .
MARRIAGE & FAM. 261 (2007). And divorce does not lead reliably to greater personal
happiness. LINDA J . WAITE ET AL., INSTITUTE FOR AM. VALUES, DOES DIVORCE MAKE PEOPLE
HAPPY? FINDINGS FROM A STUDY OF UNHAPPY MARRIAGES 4 (2002).
So as scholars acquired sufficient data to adequately assess the empirical realities of
divorce, the evidence revealed decidedly less favorable outcomes, Paul R. Amato, The Impact of
Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next
Generation, 15 FUTURE OF CHILDREN, Fall 2005, at 75, 75. It is true that the children of chronic,
high-conflict marriages actually do better when that relationship ends, AMATO & BOOTH, supra,
at 220, furthering societal interests in childrens well-being. But this is not the typical divorce
scenario; as mentioned above, most divorces come from low-conflict marriages, and these
children do worse when their parents divorce compared to children whose parents are able to
sustain the marriage. Id. And most unhappy marriages become happy again if given time, Linda
J . Waite et al., Marital Happiness and Marital Stability: Consequences for Psychological Well-
Being, 38 SOC. SCI. RES. 201, 201 (2009) [hereinafter Waite, Marital Happiness], redounding to
the further benefit of their children.

11

Accordingly, the potential salutary benefits of no-fault divorce for one subset of children
and parents have been greatly diminished by the harms it imposes on another and likely much
larger subset of children and parents. A prolonged period of greater instability is a primary
contributor to these harms. For most children (and adults), marital dissolution begins a
prolonged process of residential and relational instability, as families move and new romantic
interests move in and out of the household and many children lose contact with their fathers.
ANDREW J . CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE AND THE FAMILY IN
AMERICA TODAY 16-24 (2009) [hereinafter CHERLIN, MARRIAGE-GO-ROUND]. While there is a
long list of caveats, and while most children are resilient, the fact remains that, on average,
children whose parents divorce are at significantly greater risk for a host of economic,
behavioral, educational, social, and psychological problems. Amato, supra, at 75.
Moreover, the impact of no-fault divorce must also be assessed at the institutional level,
not just the personal level. Scholars have debated the specific effects of no-fault divorce on
subsequent divorce and marriage rates. It certainly contributed to a short-term increase in
divorce in the 1970s, but evidence suggests it has also contributed modestly to increased divorce
rates above its long-term historical trends. PARKMAN, supra, at 91 (summarizing research).
Psychologically, high rates of divorce have contributed greatly to a climate of marital fragility,
which may be influencing current declines in our overall marriage rate as well as further
increases in divorce rates. J udith Wallerstein concluded from her 25-year study of the effects of
divorce that changes to family life, including the high incidence of divorce, have created new
kinds of families in which relationships are fragile and often unreliable. WALLERSTEIN ET AL.,
supra, at 297. Nearly half of all marriages now end in divorce, Matthew D. Bramlett & William
D. Mosher, CDC, First Marriage Dissolution, Divorce and Remarriage: United States,

12

ADVANCE DATA NO. 323, at 5 (2001), making marriage seem like a risky proposition for all.
This discourages some from entering into marriage at all, WALLERSTEIN, ET AL, supra, at xvi, and
keeps the specter of divorce ever-present during times of marital discontent. Research also has
found a contagion effect for divorce, such that a divorce in ones social circle increases ones
own risk of divorce. Rose McDermott et al., Breaking Up Is Hard to Do, Unless Everyone Else
Is Doing It Too: Social Network Effects on Divorce in a Longitudinal Sample, 92 SOC. FORCES
491, 491 (2013).
The advent of no-fault divorce (with accompanying shorter waiting periods) did not just
make it procedurally easier to exit an unsatisfying relationship. It changed the legal and social
presumption of permanence in marriage. Intentionally or not, no-fault divorce diminished the
institutional and social expectation of marital permanence. It changed the public meaning of
marriage from a legally binding life-long union that was expected to weather the inevitable
disappointments and challenges of romantic unions (for better or for worse), to a union whose
duration depended on the subjective choice of one spousefrom as long as we both shall live
has been replaced by as long as we both shall love. Before no-fault divorce, our laws
reinforced the ideal that divorce should not be a ready option, although it may be a necessity.
After no-fault divorce, our laws teach that divorce is always a ready option, even if not a
necessity.
The legal change of no-fault divorce has to some extent tipped the scales of marriage in
favor of adult emotional interests and personal choice over its institutional, child-centered
elements. It weakened permanence as a fundamental public meaning of marriage and
contributed to a generational shift in attitudes and behaviors within individual marriages in ways
that harmed overall child interests. Permanence was not just an element of the legal definition of

13

marriage; it was a primary mechanism by which marriage produced its benefits for children (and
adults). The expectation of permanence provides a strong incentive for parents to work through
their problems to achieve a satisfying relationship; it encourages parents to prioritize their
childrens long-term needs above their own short-term desires; it helps to harness two adults in
the rearing of their children. Weakening the expectation of permanence in the legal and cultural
understanding of marriage unexpectedly weakened each of these child-centered factors, on
average harming the wellbeing of children.
The no-fault divorce experience serves as a warning, especially with respect to child
welfare. The definition of the institution of marriageits legal rules and norms and the social
and personal meanings and expectations that flow from themaffects the behavior of all couples
within marriage. And that in turn can have profound effects on the overall wellbeing of children,
even if the immediate rationale of the change is to benefit a specific subset of children and
adults.
III. Redefining Marriage in Non-Gendered Terms Will Likely Harm the Interests of
Children by Diminishing the Relevance and Value of Marriage and Fatherhood to
Heterosexual Men.
As with early advocates for no-fault divorce, proponents of eliminating the gendered
definition and understanding of marriage confidently predict that such a change will have no
adverse consequences for heterosexual marriages or their children. What could be the harm to
marriage-related interests of allowing same-sex couples to marry? Indeed, for the vast majority
of people, the argument goes, nothing would change: If you like your marriage, you can keep
your marriage.
This recalls the optimistic early thinking about no-fault divorce. Yet some humility is in
order. It is unlikely that contemporary thinkers attempting to divine the consequences of another
major change to the legal definition of marriagethe removal of gender as a defining pillarare

14

more gifted at secular prophecy than were thinkers in the early years of the no-fault divorce
revolution. Indeed, in our view, the no-fault divorce revolution provides the clearest precedent
for rational predictions about the effects of redefining marriage in genderless terms.
J ust as the innovation of no-fault divorce benefited men and women in irretrievably
broken marriages, same-sex couples may benefit from being able to marry and from the non-
gendered understanding of marriage that such a redefinition would create. And it is reasonable
to assumealthough it is hardly a certaintythat some existing children in same-sex couple
households would also benefit from marriage if it brings greater stability to their family. But as
the history of no-fault divorce suggests, there are strong reasons not to fully credit such
predictions. And importantly, one has to look beyond the effects within same-sex families alone
to accurately gauge the full impacts of a de-gendered understanding of marriage.
Benign predictions about the effects of such a redefinition, moreover, are based on the
assumption that legalizing same-sex marriage would not be a significant change in the core
definition of marriage, or that, even if it is, such a change will have little or no adverse
consequences on marriage as an institution and on those who depend on its current definition.
But in fact, the legalization of same-sex marriage would eliminate gender as a definitional pillar
of the social institution of marriage. That would not just expand or extend marriage to another
class of relationships leaving unchanged the basic institution for its traditional members; it would
effect a fundamental change in its meaning. And changing its meaning most likely will change
behavior. To deny this likelihood is intellectually untenableit is to deny that meaning matters
to social institutions, and that marriage matters as a social institution.
How the new, de-gendered meaning of marriage will change attitudes toward and
behaviors within marriage cannot be known with precision. But based on what is known about

15

marriage as an institution and the roles it has long played in society, we can make some highly
reasonable projections. We focus here on one in particular: that stripping marriage of its
gendered meaning will likely diminish the relevance and meaning of marriage and fatherhood to
heterosexual men, weakening their connection to marriage and to the children they father.
A. Traditional, gendered marriage is the most important way heterosexual men
create their masculine identities. Marriage forms and channels that
masculinity into the service of their children and society. Redefining
marriage to include same-sex couples would eliminate gender as a crucial
element of marriage and thus undermine marriages power to shape and
guide masculinity for those beneficial ends.
Far from being a relic of history or a quaint custom that has outgrown its usefulness in
modern society, gender is a crucial component of not only the definition of marriage but of how
marriage produces its benefits for children and society. In fact, it may be more crucial now than
it has ever been because of changes that have occurred in the meaning of marriage over the past
five decades that have dramatically weakened mens ties to their children and their childrens
mother. Sara McClanahan, Diverging Destinies: How Children Are Faring Under The Second
Demographic Transition, 41 DEMOGRAPHY 607, 607 (2004).
According to eminent family sociologist Steven L. Nock, marriage is a primary means of
shaping mens identities and behaviors (e.g., sexual, economic, etc.) from self-centered in nature
to child-and family-centered in orientation:
Historically, masculinity has implied three things about a man: he should be the
father of his wifes children, he should be the provider for his wife and children,
and he should protect his family. Accordingly, the male who refused to provide
for or protect his family was not only a bad husband, he was somehow less of a
man. In marriage, men do those things that are culturally accepted as basic
elements of adult masculinity. . . . [M]arriage changes men because it is the venue
in which adult masculinity is developed and sustained.
STEVEN L. NOCK, MARRIAGE IN MENS LIVES 4 (1998). Moreover, Nock argues that, by calling
for behaviors of a certain type [socially valuable behaviors], the expectations of normative

16

marriage also reinforce and maintain [generative] masculine identities. In this sense, normative
marriage is a masculinity template. . . . In their marriages, and by their marriages, men define
and display themselves as masculine. Id. at 58-59. When we ask why marriage appears to be
beneficial to men [and women and children], one possible answer is that the institution of
marriage, at least in its traditional form, is a socially approved mechanism for the expression of
[mature] masculinity. Id. at 59.
Marriage is the most important social mechanism we have to channel young mens adult
identity into other-oriented behaviors of sacrifice, generosity, and protection for their own
children and even for all children. Marriage is a transformative act, but especially so for men,
because of how it directs mens adult identity into service to their families and to society
But fatherhood is more socially constructed and more contextually sensitive than
motherhood, according to a landmark report to the U.S. Department of Health and Human
Services, which was later published in a leading peer-reviewed journal. William J . Doherty et
al., Responsible Fathering: An Overview and Conceptual Framework, 60 J . MARRIAGE & FAM.
277 (1998) [hereinafter Doherty, Responsible Fathering]. Fatherhood is more problematic than
motherhood because mens commitment to and investment in parenting is far more difficult to
achieve. Many of the historical supports that have traditionally preserved mens involvement in
their childrens lives have been eroding for contemporary families. Historically high rates of
non-marital cohabitation, out-of-wedlock childbirth, and marital divorce, McClanahan, supra,
have dramatically altered the landscape of fathering, leaving unprecedented numbers of children
growing up with uncertain or non-existent relationships with their fathers.
While these demographic trends have changed family life in general, they have been
particularly grim for father-child relationships, which are more sensitive than mother-child

17

relationships to contextual forces and supports. Doherty, Responsible Fathering, supra, at 277.
Accordingly, any signal that mens contributions are not central to childrens well-being
threatens to further decrease the likelihood that they will channel their masculine identities into
responsible fathering. We believe the official de-gendering of marriage sends just such a signal.
A gender-free definition of marriage risks eliminating the achievement of mature, other-centered
masculinity (as opposed to immature, self-centered masculinity) as a primary motivation for
generative fathering.
Thus, the legal recognition of same-sex marriage is not just an extension or expansion of
marriages borders to accommodate a new kind of family form; it is a fundamental change to the
meaning of marriage and fatherhood. In our opinion, to legally proclaim that gender is not an
essential component of marriage undermines in a profound, far-reaching, and official way the
very mechanism that creates many of the benefits that marriage produces. If marriage is
redefined as two committed partners regardless of their gender, then marriages connection to
mens role as fathers is necessarily ambiguous. A genderless meaning of marriage puts at risk
the cultural sense that marriage and fatherhood are central to defining mens identities. It invites,
even demands, new ways of understanding families that make mens unique contributions to
family life and their children entirely optional. It deepens the destructive, decades-long cultural
trend of questioning the necessity and importance of fathers as nurturers, providers, and
protectors within families, which has weakened father-child bonds and familial ties.
In sum, if men are legally defined as optional to marriage and childrearing, then marriage
will likely struggle to maintain its primacy as a means for men to establish their masculine
identity in ways that serve children best. A gender-free definition of marriagewhere gender is
officially irrelevant to its structure and meaningwill likely have less social power to draw

18

heterosexual men into marriage and thus less power to serve marriages vital child-welfare
purposes. And no doubt these potential effects, like many others, would be felt most keenly and
quickly by the children and families of the most disadvantaged men in our societymen who
already are struggling with a sense that they are of secondary importance within their families
and whose masculinity is already challenged by their tenuous participation in our economic
system. KATHRYN EDIN & TIMOTHY J . NELSON, DOING THE BEST I CAN: FATHERHOOD IN THE
INNER CITY 216-28 (2013).
To be sure, these risks associated with same-sex marriage may be difficult to disentangle
from negative effects from other strong social changes. After all, we believe a de-gendered
understanding of marriage is an additional force in a larger trend that is uncoupling sexuality,
marriage, and parenthood and making mens connections to children weaker. Thus, it may be
difficult to separate statistically the potential effects of de-gendering marriage from the effects
stemming from powerful forces to which it is related, such as the sexual revolution, the divorce
revolution, and the single-parenting revolution. That these effects are intertwined with the
effects of other powerful forces, however, does not diminish their importance or the harms they
can impose on marriage.
Removing gender from the legal meaning of marriage will deepen the grand social
experiment of the past 50 years of deinstitutionalizing marriage and fatherhood. Andrew
Cherlin, The Deinstitutionalization of American Marriage, 66 J . MARRIAGE FAM. 848, 848
(2004). And we fear its consequences will only add to the problems this change in family life is
producing.
B. Abandoning the gendered definition of marriage, thereby weakening the
connection of heterosexual men to marriage and fatherhood, will harm the
States interests in maximizing the welfare of children.

19

We have demonstrated how abandoning the gendered definition of marriage will tend to
further alienate heterosexual men from marriage and fatherhood. Although precise effects
cannot be known with certainty at this early stage, that alienation is likely to harm the States
interests in securing the welfare of childrenand specifically in maximizing the likelihood that
children will be reared by a father as well as a motherin at least four concrete and predicable
ways.
1. Fewer and shorter marriages. Redefining marriage in genderless terms will
undermine the States interest in encouraging heterosexual fathers to marry the mothers of their
children. If men no longer view marriage as central to defining their adult identitiesif they see
themselves as unnecessary to the intrinsic meaning and purpose of marriage and thus view
marriage as unrelated to their sense of malenessthey will be less likely to marry, even when
they become fathers. Marriage, in other words, will simply be less relevant to men and thus less
attractive to them. In an already highly individualistic culture such as ours, men will be more
likely to seek to establish their adult identities through other means, such as career and financial
success, personal pursuits, and leisure activities and non-marital sexual relationships. The
children of such men will be far less likely to be raised by their fathers as well as their mothers,
and as a result will suffer. See KRISTIN ANDERSON MOORE ET AL., CHILD TRENDS, MARRIAGE
FROM A CHILDS PERSPECTIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN AND WHAT
CAN WE DO ABOUT IT? 6(J une2002) http://www.childtrends.org/wp-
content/uploads/2013/03/MarriageRB602.pdf (children born and raised without a married father
and mother suffer increased risks of poor outcomes).


20

Redefinition will also undermine the States interest in encouraging married heterosexual
fathers to remain married for the benefit of their children despite marital difficulties. Until the
current generation, the widely held (and now empirically supported) belief that children needed
their fathers was a central tenet in social norms encouraging men to work through marital
troubles with their wives . . . . J ason S. Carroll & David C. Dollahite, Whos My Daddy?
How the Legalization of Same-Sex Partnerships Would Further the Rise of Ambiguous
Fatherhood in America, in WHATS THE HARM?: DOES LEGALIZING SAME-SEX MARRIAGE
REALLY HARM INDIVIDUALS, FAMILIES OR SOCIETY 62 (Lynn D. Wardle ed., 2008). This retreat
from the ideal may be particularly devastating for [the family involvement and parenting of] men
who, according to research, are more reliant on such social and relationship supports to foster
their healthy involvement in family life and parenting. Id. As we noted previously, research
studies have found that most divorces come from low-conflict marriages and that the children in
these families do worse when their parents divorce compared to children whose parents are able
to sustain the marriage. AMATO & BOOTH, supra, at 220. Also, most unhappy marriages
become happy again if given time, Waite, Marital Happiness, supra, at 201, rebounding to the
further benefit of their children. A gendered definition of marriage and parenting emphasizes that
fathers are important and unique in the lives of their children. This perspective helps men see
that their children are stakeholders in their marriages and discourages divorce. Same-sex
marriage denies that men are essential to marriage and thus that fathers are essential in the lives
of their children, which will increase the likelihood that fewer heterosexual fathers stay married
for the sake of their children.

21

2. Less parenting by fathers. Abandoning the gendered definition of marriage will
also diminish the likelihood of men, even married men, being responsible fathers, or being
fathers at all. Indeed, it is likely that redefining marriage
would support a retreat from fatherhood altogether among some American men.
One aspect of a self-defined parenting ideology in society is the option of not
being a parent at all. If fathering is not a cultural ideal, the potential exists for an
increase in men who live outside marriage and parenthood altogether. Given the
data on the negative social consequences of a large number of unmarried men
(e.g., higher rates of crime and other anti-social behavior), we should resist
movement toward a parenting culture that would suggest that men can be viewed
as sperm donors whose only essential parenting role is conception and then
women can do it alone, either as single parents or as a lesbian couple. The loss of
a cultural ideal for men to become responsible fathers could lead to increased
numbers of men and children who live in non-generative contexts.
Carroll & Dollahite, supra, at 62-63. This would harm the States interest in encouraging the
optimal mother-father, biological parenting model, resulting in more children being raised
without the benefits of a biological fatheror any father at all.
3. More conception outside marriage rather than inside marriage. For similar
reasons, abandoning the gendered definition of marriage would make it more likely that men will
engage in sex outside marriage, and will thus produce comparatively more children who will
likely be raised by their mothers alone. For many men, the current cultural expectation that they
will be active fathers to any children they help conceive serves as a natural deterrent to engaging
in extra-marital sex and thus risking the incursion of such an obligation. By weakening or
removing that cultural expectationi.e., by making the fathers role optionalredefining
marriage in genderless terms will reduce that deterrent and, therefore, likely increase the relative
number of children conceived and born outside of marriage, with no expectation that the father
will be actively involved in rearing them. In short, redefinition will likely increase the
proportion of fatherless children in two ways: by reducing the number of children born within
marital unions, and by increasing the number born outside of such unions.

22

Of course, current increases in non-marital childbirth rates reflect large increases in the
number of cohabiting couples having children, which is increasingly being seen by many as
another culturally viable form of family formation. And, if young mothers and fathers were
actually marrying each other a year or two after the arrival of their first child and remaining
together, non-marital childbirth rates might not be much to worry about. But that is not whats
happening. Nearly 40 percent of cohabiting twenty-something parents who had a baby between
2000 and 2005 split up by the time their child was fivethree times the rate for twenty-
something parents who were married when they had a child. Cohabiting parents were also more
than three times more likely than married parents to move on to another cohabiting or marital
relationship with a new partner if their relationship did break up. KAY HYMOWITZ, ET AL., KNOT
YET: THE BENEFITS AND COSTS OF DELAYED MARRIAGE IN AMERICA (2013), available at
http://twentysomethingmarriage.org/in-brief/. Research paints a sobering picture of the effect
these disruptions have. Children suffer emotionally, academically, and financially when they
experience this type of relationship carousel. See CHERLIN, MARRIAGE-GO-ROUND, supra;
Amato, supra.
4. Less self-sacrificing by fathers. Finally, further alienating men from marriage and
fatherhood by redefining it to make their presence unnecessary would likely diminish self-
sacrificing behavior by men for their wives and children. If, as we show above, a genderless
definition of marriage undermines marriage and fatherhood as a primary vehicle for adult
identity-creation, then men will be less likely to sacrifice their self-interests for the child-centric
interests inherent in traditional male-female marriage and fatherhood. When faced with choices
regarding career, housing and neighborhood decisions, long-term saving, child educational
needs, personal recreational activities, activities with friends, sexual fidelity to spouse, alcohol

23

and drug use, and a host of other decisions affecting the welfare of their children, fathers will be
more likely to choose their own selfish interests over those of their wives and children. As child
interests take a back seat, the welfare of children is likely to suffer in a host of ways.
CONCLUSION
The social impact of this court mandating legalization of same-sex marriage in Louisiana
would be radical. Two-thirds of all states and 92% of all nations today reject same-sex marriage.
Within the past fifteen years, voters in thirty-one states have adopted amendments to their state
constitutions barring same-sex marriage; while same-sex marriage has become is legal only in
the past decade and currently in only sixteen (soon 17) states.
2
To redefine marriage to authorize
same-sex marriages would profoundly alter the meaning of the institution which the Supreme
Court long has protected.
Redefining marriage to include same-sex couples is not merely a matter of extending to
such couples the benefits of marriage. Social institutions are constituted by legal and social
meanings that shape and guide human behavior. Marriage, our foremost social institution, has
profound connections with child welfare and adult male identity. Marriage cannot simply be
redefined in non-gendered terms without significant consequences for children.
Naturally, the risks associated with legalizing same-sex marriage may prove difficult to
statistically disentangle from the negative effects of other strong social changes. In our view, a
de-gendered understanding of marriage is an additional force in a larger trend that is uncoupling
sexuality, marriage, and parenthood and making mens connections to children weaker. Thus, it
may be difficult to statistically separate the potential effects of de-gendering marriage from

2
See Lynn D. Wardle, Legal Status of Same-sex Marriage and Unions in the USA and World (25 March
2014), available at http://www.law2.byu.edu/files/marriage_family/Status%20of%20SSM-
CUs%20World%20140325.pdf (seen 8 May 2014).

24

effects stemming from powerful forces to which it is related: the sexual revolution, the divorce
revolution, and the single-parenting revolution. But the fact that de-gendering effects are
intertwined with the effects of other powerful forces does not diminish their importance.
Much as no-fault divorce changed the presumed permanence of marriage, creating
adverse consequences for children, abandoning the gendered definition of marriage would
further destabilize marriage as a key definer and shaper of mature male identity. This, in turn, is
likely to further alienate men from marriage, resulting in harm to marriages vital role in
advancing child welfareand particularly in increasing the likelihood that many more children,
will not be reared by a father as well as a mother. While the precise effects of redefining
marriage are not yet known with certainty, these risks are real and cannot be ignored.
For these reasons, we urge the Court to reject plaintiffs arguments advocating the
judicial redefinition of marriage.


Daniel Danny R. Atkinson, J r.
Daniel "Danny" R. Atkinson, J r. (LA 18103)
Perry, Atkinson, Balhoff, Mengis & Burns, LLC
2141 Quail Run Dr.
P.O. Drawer 83260
Baton Rouge, LA 70884-3260
Office (225) 767-7730
Direct (225) 767-8864
Cell (225) 938-5557
Fax (225) 767-7967
Email: Atkinson@pabmb.com
Counsel of Record for Amici Hawkins and Carroll


25

I hereby certify that on May 9, 2014, I electronically filed the foregoing Amicus Curiae
brief with the Clerk of the Court for the United States District Court, Eastern District of
Louisiana by using the CM/ECF system, and that counsel for all parties in this case are registered
CM/ECF users and will be served by CM/ECF system.

/s/ Daniel Danny R. Atkinson, J r.
Daniel Danny R. Atkinson. J r.
Attorney for Amici Hawkins and
Carroll

1
CASES

Goodridge v. Dept of Pub. Health
798 N.E.2d 941 (Mass. 2003) .................................................................................................... 8

Hernandez v. Robles
855 N.E.2d 1 (N.Y. 2006) .......................................................................................................... 6

Lewis v. Harris
908 A.2d 196 (N.J . 2006) ........................................................................................................... 8

United States v. Windsor
133 S. Ct. 2675 (2013) ............................................................................................................ 7,8

Williams v. North Carolina
317 U.S. 287 (1942) ................................................................................................................... 5

OTHER AUTHORITIES

A.R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN PRIMITIVE SOCIETY
(1952) ......................................................................................................................................... 4

ALLEN M. PARKMAN, GOOD INTENTIONS GONE AWRY: NO-FAULT DIVORCE AND THE AMERICAN
FAMILY (2000) ....................................................................................................................... 9,11

Andrew Cherlin, The Deinstitutionalization of American Marriage, 66 J . MARRIAGE FAM. 848
(2004) ....................................................................................................................................... 18

ANDREW J . CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF MARRIAGE AND THE FAMILY IN
AMERICA TODAY (2009) ...................................................................................................... 11,22

Barara Dafoe Whitehead, THE DIVORCE CULTURE: RETHINKING OUR COMMITMENTS TO
MARRIAGE AND FAMILY (1996).................................................................................................. 9

Barbara Dafoe Whitehead, The Experts Story of Marriage 7 (A Council on Families in Am.
Working Paper for the Marriage in Am. Symposium, Working Paper No. WP14, 1992) ......... 5


2
Betsey Stevenson & J ustin Wolfers, Bargaining in the Shadow of the Law: Divorce Law and
Family Distress, 121 Q.J . ECON. 267 (2006) ............................................................................. 8

Daniel Cere, The Conjugal Tradition in Postmodernity: The Closure of Public Discourse?, Paper
Presented at Re-visioning Marriage in Postmodern Culture Conference, 4-5 (Dec. 2003) ....... 5

Donald Moir, A New Class of Disadvantaged Children, in IT TAKES TWO: THE FAMILY IN LAW
AND FINANCE 63, 67-68 (Douglas W. Allen & J ohn Richards eds., 1999) ................................ 9

DOUGLASS NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE, AND ECONOMIC PERFORMANCE
(1990) ......................................................................................................................................... 2

E. MAVIS HETHERINGTON & J OHN KELLY, FOR BETTER OR FOR WORSE: DIVORCE RECONSIDERED
(2002) ....................................................................................................................................... 10

G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS (1988) .................................................... 5

J AMES Q. WILSON, THE MARRIAGE PROBLEM: HOW OUR CULTURE HAS WEAKENED OUR
FAMILIES (2002) ......................................................................................................................... 5

J ason S. Carroll & David C. Dollahite, Whos My Daddy? How the Legalization of Same-Sex
Partnerships Would Further the Rise of Ambiguous Fatherhood in America, in WHATS THE
HARM?: DOES LEGALIZING SAME-SEX MARRIAGE REALLY HARM INDIVIDUALS, FAMILIES OR
SOCIETY
(Lynn D. Wardle ed., 2008). ............................................................................................... 20,21

J UDITH S. WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF DIVORCE: THE 25 YEAR
LANDMARK STUDY (2000) ................................................................................................ 8, 9, 11

KATHRYN EDIN & TIMOTHY J . NELSON, DOING THE BEST I CAN: FATHERHOOD IN THE INNER CITY
(2013) ....................................................................................................................................... 18

KAY HYMOWITZ, ET AL, KNOT YET: THE BENEFITS AND COSTS OF DELAYED MARRIAGE IN
AMERICA (2013) ....................................................................................................................... 21

KRISTIN ANDERSON MOORE ET AL., CHILD TRENDS, MARRIAGE FROM A CHILDS
PERSPECTIVE: HOW DOES FAMILY STRUCTURE AFFECT CHILDREN AND WHAT CAN WE DO
ABOUT IT? (J une 2002)............................................................................................................. 19


3
LINDA J . WAITE ET AL., INSTITUTE FOR AM. VALUES, DOES DIVORCE MAKE PEOPLE HAPPY?
FINDINGS FROM A STUDY OF UNHAPPY MARRIAGES (2002) ..................................................... 10

Linda J . Waite et al., Marital Happiness and Marital Stability: Consequences for Psychological
Well-Being, 38 SOC. SCI. RES. 201 (2009) .......................................................................... 10,20

Lynn D. Wardle, Legal Status of Same-sex Marriage and Unions in the USA and World (25
March 2014), available at http://www.law2.byu.edu/site/marriage-family/home (seen 8 May
2014).23

Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage As a Social Institution: A Reply
to Andrew Koppelman, 2 U. ST. THOMAS L. J . 33 (2004) .......................................................... 4

Matthew D. Bramlett & William D. Mosher, CDC, First Marriage Dissolution, Divorce and
Remarriage: United States, ADVANCE DATA NO. 323 (2001) ................................................. 11

Monte Neil Stewart, Judicial Redefinition of Marriage
21 CAN. J . FAM. L. 11 (2004) ...................................................................................................... 6

NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) ...................... 6

PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY
UPHEAVAL (1997) ................................................................................................................ 10,20

Paul R. Amato & Bryndl Hohmann-Marriott, A Comparison of High- and Low-Distress
Marriages That End in Divorce, 69 J . MARRIAGE & FAM. (2007) ........................................... 10

Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and
Emotional Well-Being of the Next Generation, 15 FUTURE OF CHILDREN, Fall 2005 .... 10,11,22

ROBERT GEORGE ET AL., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE (2012) ................ 7

Rose McDermott et al., Breaking Up Is Hard to Do, Unless Everyone Else Is Doing It Too:
Social Network Effects on Divorce in a Longitudinal Sample, 92 SOC. FORCES 491(2013) .... 11

SAMUEL J OHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755) ....................................... 6

Sara McLanahan, Diverging Destinies: How Children Are Faring Under The Second
Demographic Transition, 41 DEMOGRAPHY 607 (2004) ..................................................... 15,16


4
STEVEN L. NOCK, MARRIAGE IN MENS LIVES (1998) .................................................................. 15

Victor Nee & Paul Ingram, Embeddedness and Beyond: Institutions, Exchange, and Social
Structure, in THE NEW INSTITUTIONALISM IN SOCIOLOGY (Mary C. Brinton & Victor Nee eds.,
1998)........................................................................................................................................... 4

William J . Doherty et al., Responsible Fathering: An Overview and Conceptual Framework, 60
J . MARRIAGE & FAM. 277 (1998) ............................................................................................. 16

WILLIAM J . DOHERTY, ET AL., INSTITUTE FOR AM. VALUES, WHY MARRIAGE MATTERS: TWENTY-
ONE CONCLUSIONS FROM THE SOCIAL SCIENCES (2002) ............................................................ 5

WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD: TEN PRINCIPLES (2006) .............. 7

Plaintiffs
v.
Defendants
CIVIL ACTION
NO. 13-5090 SECTION F(5)
REF: ALL CASES
BRIEF OF AMICI CURIAE
J. RANDALL TRAHAN AND KATHERINE SHAW SPAHT
ON BEHALF OF DEFENDANTS
Gregory Scott LaCour (Bar No. 23823)
Amanda M. Pendleton (Bar No. 34022)
DAVID J. LUKINOVICH, APLC
4415 Shores Drive, Suite 200
Metairie, Louisiana 70006
Telephone: (504) 818-0401
Telecopy: (504) 818-0408
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. The Louisiana Legislatures decision to enact Louisiana Civil Code art. 3520.B, far from
being a bizarre departure from traditional conflict of laws principles, was an effort to
codify those very principles, an effort that represented a reasoned and proportioned response
to a credible threat to those principles posed by then contemporaneous social, political, and
judicial developments outside Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. The strong public policy against same-sex marriage on which Louisiana Civil Code article
3520.B is premised has its roots in Louisianas traditional civil law understanding of
marriage, according to which the procreation and rearing of children are viewed as its natural
concomitants; same sex-marriage cannot be reconciled with this venerable understanding of
marriage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
LOUISIANA
CONSTITUTION
Art. 12, 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
LEGISLATION
CIVIL CODE ARTICLES
86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
215 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
238 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Page 2 of 20
246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9, 10, 11
3520.A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
3520.B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11, 12, 19
REVISED STATUTES
14:76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14:78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14:89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
JURISPRUDENCE
Dupre v. Executor of Boulard, 10 La. Ann. 415 (1855) . . . . . . . . . . . . . . . . . . . . 6
Ghassemi v. Ghassemi, 998 So.2d 731 (La. App. 1
st
Cir. 2008) . . . . . . . . . . . . . . 8
Ledoux v. Her Husband, 10 La. Ann. 663 (1855) . . . . . . . . . . . . . . . . . . . . . . . . 16
Succession of Gabisso, 119 La. 704, 712 44 So. 438 (1907) . . . . . . . . . . . . . . . . . 6
DOCTRINE
Kenneth Murchison & J. Randall Trahan, WESTERN LEGAL TRADITIONS & SYSTEMS:
LOUISIANA IMPACT (rev. ed. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13
Katherine S. Spaht, State Constitutional Amendments Prohibiting Same-sex Unions:
Winning the Dual Object Argument, 7 FL. C. L. REV. 339, 361-62 (2005)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Katherine S. Spaht, The Last One Hundred Years: the Incredible Retreat of Law
from the Regulation of Marriage, 63 LA. L. REV. 243 (2003) . . . . . . . . . . 7
Katherine S. Spaht, Revolution and Counter-Revolution: the Future of Marriage in
the Law, LOY. L. REV. 1, 47-48 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
J.-R. Trahan, Impediments to Marriage in Scotland and Louisiana: An Historical-
Comparative Investigation, forming Chapter 7 of MIXED JURISDICTIONS
COMPARED: PRIVATE LAW IN LOUISIANA AND SCOTLAND 173 (2009) . . 7
J.-R. Trahan, Glossae on the New Law of Filiation, 67 LA. L. REV. 387 (2007) 17
J.-R. Trahan, The Continuing Influence of Le Droit Civil and El Derecho Civil in the
Private Law of Louisiana, 63 La. L. Rev. 1019 (2003) . . . . . . . . . . . . . . 13
OTHER
UNITED STATES
FEDERAL-JURISPRUDENCE
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) . 12
Page 3 of 20
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . 12
Dred Scott v. Sandford, 60 U.S. 393 (1857) . . . . . . . . . . . . . . . . . . . . . . 12
Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
U.S. v. Windsor, 133 S. Ct. 2675, 2689 (2013) . . . . . . . . . . . . . . . . . . . . . 7
OTHER STATES-JURISPRUDENCE
Baehr v. Miike, Civ. No. 91-1394,1996 WL 694235 (Haw. Dist. 1996), affd
per curiam, 87 Haw.34, 950 P.2d 1234 (Haw. 1997) . . . . . . . . . 10
Baker v. State, 744 A.2d 864 (Vt. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . 10
Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743
(Alaska Super. Feb. 27, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
FRANCE DOCTRINE
2 Jean Domat, LES LOIS CIVILES DANS LEUR ORDER NATUREL ch. III, secs. I-IV, pp.
xiii-xvi (2d ed. 1697) (J.R. Trahan tr., 2014) . . . . . . . . . . . . . . . . . . . . . . 15
J.-E.-M. Portalis, Prsentation au Corps Lgislatif, in 9 RECUEIL COMPLET DES
TRAVAUX PRPARATOIRES DU CODE CIVIL 138 (P.A. Fenet ed., 1827) (J.R.
Trahan tr., 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Robert Pothier, TRAIT DU CONTRAT DE MARIAGE n
o
5, p. 4, in 5 OEUVRES DE
POTHIER (Dupin ed., nouv. ed. 1825) (J.R. Trahan tr., 2014) . . . . . . . . . 15
SPAIN - LEGISLATION
4 LAS SIETE PARTIDAS pt. 4, intro. & tit. 2, intro. & laws 3 & 4, at 877, 886, & 887
(Robert I. Burns, S.J., Burns ed. & Samuel Scott Parsons, tr., 2001) . . . 14
Amici curiae, J. Randall Trahan and Katherine Shaw Spaht, are professors of law at
Louisiana State University. Professor Trahan regularly teaches courses in family law, regularly
speaks in a number of continuing legal education programs on the subject of family law, and has
written several articles pertaining to various aspects of family law. Professor Emeritus Spaht, during
her lengthy career, regularly taught family law and published extensively on the subject of marriage
and related matters in family law. Her publications include the Louisiana Civil Law Treatise on
Matrimonial Regimes. Professors Spaht and Trahan file this brief in their individual capacities,
Page 4 of 20
neither of them representing Louisiana State University or its law school. Amici curiae have no
personal interest in the outcome of the pending litigation other than as teachers of and commentators
on the Louisiana law of marriage and as concerned Louisiana citizens.
ARGUMENT
I. The Louisiana Legislatures decision to enact Louisiana Civil Code art. 3520.B, far
from being a bizarre departure from traditional conflict of laws principles, was an
effort to codify those very principles, an effort that represented a reasoned and
proportioned response to a credible threat to those principles posed by then
contemporaneous social, political, and judicial developments outside Louisiana.

A central plank of the plaintiffs case is the contention that the enactment of Louisiana Civil
Code Article 3520.B
1
cannot be explained except on the theory that its backers were motivated by
some sort of anti-homosexual animus. Evidence in support of this theory, the plaintiffs maintain,
includes what they regard as the seeming singularity of Article 3520.B. Before Article 3520.B was
enacted in 1999, Article 3520, the plaintiffs correctly note, consisted of only one paragraph, that
which is now labeled A, the relevant part of which then read (and still reads) as follows: A
marriage that is valid in the state where contracted . . . shall be treated as a valid marriage unless to
do so would violate a strong public policy of the state whose law is applicable [under other general
conflicts-of-law principles]. By adding Paragraph B to the article, which explicitly prohibits
recognition of foreign same-sex marriages, the Legislature
2
so say the plaintiffs did something
unprecedented, namely, singled out one specific strong public policy of Louisiana from among the
1
Throughout our brief, we will have occasion to cite a number of Louisiana Civil Code
articles. For the sake of convenience, we will hereafter use the abbreviation LCC art. or simply
Article in referring to those articles.
2
Because we will be speaking of the Louisiana Legislature quite a lot in this brief, we will,
here and hereafter, use simply the short form expression Legislature to refer to it.
Page 5 of 20
others that against same-sex marriage for special treatment.
Though the plaintiffs are correct about the singularity of LCC art. 3520.B, they are not
correct about the considerations that motivated its enactment. As we will explain below, through the
enactment of Article 3520.B, the Legislature, far from breaking with traditional conflicts of laws
principles, took pains to codify them , doing so in the face of a credible threat to those principles
posed by then contemporaneous social, political, and judicial developments outside Louisiana.
Before presenting the arguments in support of this proposition, we would do well, first of all,
to address several background matters. Without a clear understanding of this background, neither
the plaintiffs arguments, nor those we will make to rebut them, can be properly assessed.
First, it is beyond all disputing that the strong public policy exception to Louisianas
general choice-of-law rule of favor matrimonii the exception now instantiated in LCC art. 3520
is of ancient vintage. The exception can be traced at least as far back as 1907
3
, when the state
supreme court first recognized it in haec verbae, and perhaps even as far back as 1855
4
, when the
state supreme court undoubtedly applied the principle, though without identifying it.
Second, there can be no doubt that Louisiana has, in fact, long had a strong public policy
against same-sex marriage. Can we point to some old piece of legislation, judicial decision, even
piece of scholarship that says as much explicitly? No, we cannot. But that is hardly determinative
of the question. One cannot very well expect legislators, judges, or scholars to speak to what is
unthinkable, and up until recently, the very idea of same-sex marriage most assuredly fit that
3
Succession of Gabisso, 119 La. 704, 712, 44 So. 438, 441 (1907).
4
Dupre v. Executor of Boulard, 10 La. Ann. 415, 415 (1855).
Page 6 of 20
description, not just in Louisiana, but around the world.
5
As Professor Spaht has noted in a recent
publication,
[w]hat did not appear at the turn of the century as an incapacity to contract marriage
was a person who is of the same sex. It never would have occurred to the lawmaker
to prohibit the marriage of persons of the same sex since marriage, a natural
institution by definition and by natural law, could only be contracted by persons of
the opposite sex. That marriage could be contracted between persons of the same sex
would constitute an oxymoron; therefore, there was simply no need to include any
prohibition of such marriage. No other civilization which had recognized the
institution of marriage had ever permitted the marriage of persons of the same sex.
6
One might add to this observation the fact that, from the very beginning of its existence, Louisiana
has criminalized the kind of sexual intercourse that same-sex marriage, as a matter of law, would
necessarily presuppose, that is, sodomy.
7,8
It is hardly a stretch to suggest that Louisiana has always
5
That this is so was acknowledged by the majority in U.S. v. Windsor, 133 S. Ct. 2675, 2689
(2013) (It 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. That belief, for many who long have held it, became
even more urgent, more cherished when challenged. For others, however, came the beginnings of
a new perspective, a new insight.)
6
Katherine S. Spaht, The Last One Hundred Years: the Incredible Retreat of Law from the
Regulation of Marriage, 63 LA. L. REV. 243, 253-54 (2003). See also J.-R. Trahan, Impediments to
Marriage in Scotland and Louisiana: An Historical-Comparative Investigation, forming Chapter
7 of MIXED JURISDICTIONS COMPARED: PRIVATE LAW IN LOUISIANA AND SCOTLAND 173, at 195
(2009) (During most of the American period [of Louisiana legal history], it was evidently assumed,
as a matter of custom, that persons of the same sex could not contract marriage with each other.)
7
See La. R.S. 14:89.
8
The notion that same-sex marriage would necessarily entail any form of sexual intercourse,
much less a form proscribed by law, requires special comment. Though it seems not to be widely
known, the civil law in general and that of Louisiana in particular have long imposed upon spouses
what is known as the positive duty of fidelity. As comment (a) to LCC art. 98 explains, the term
fidelity, as used in Article 98, refers not only to the spouses' duty to refrain from adultery, but
also to their mutual obligation to submit to each other's reasonable and normal sexual desires. The
Page 7 of 20
had a strong public policy against a form of marriage that, by definition, would entail behavior that
Louisiana has always defined as criminal.
Third, it is equally clear that opposition to same-sex marriage is not the only strong public
policy of Louisiana that might trigger the exception. Alongside that policy there are at least two
others. One is the policy against polygamy, reflected in LCC art. 88.
9
In the previously referenced
supreme court opinion of 1907, polygamy was specifically mentioned as one of the those forms of
marriage that, even if permitted by the law of some another state, could not be recognized in
Louisiana. This conclusion is buttressed by the fact the polygamy was then (and still today) remains
a criminal offense in Louisiana.
10
Another is the policy against incestuous marriages, reflected in
LCC art. 90.A
11
, at least insofar as it concerns unions between truly close relations, such as parent
and child, brother and sister, and even aunt (or uncle) and nephew (or niece).
12
The 1907 opinion
jurisprudence has held that the latter obligation is a necessary concomitant of marriage. This duty
would fall on any same-sex married couple in Louisiana, just as it falls on any opposite-sex married
couple in Louisiana. And, in the case of a same-sex married couple, the only kind of sex that each
might possibly give the other would be sodomy.
9
A married person may not contract another marriage.
10
Bigamy is the marriage to another person by a person already married and having a
husband or wife living; or the habitual cohabitation, in this state, with such second husband or wife,
regardless of the place where the marriage was celebrated. La. R.S. 14:76.
11
The following persons may not contract marriage with each other: (1) Ascendants and
descendants. (2) Collaterals with the fourth degree, whether of the whole or of the half blood.
12
The qualification we have added here (reflected in the at least insofar clause of the
sentence) is made necessary by the fairly recent case of Ghassemi v. Ghassemi, 998 So.2d 731 (La.
App. 1
st
Cir. 2008). The court of appeal, applying LCC art. 3520.A, concluded that though LCC art.
90 prohibits marriages between first cousins, the public policy underlying that prohibition is not so
strong as to preclude the recognition of out-of-state marriages between first cousins contracted in
jurisdictions in which such unions are permitted. The court took repeated pains, however, to
distinguish first-cousin unions from unions between closer relatives. First, the court wrote this: In
Page 8 of 20
mentioned incestuous unions together with polygamous unions. And incest between such close
relations, just like polygamy, was then (and still is) a criminal offence.
13
With this background now clearly exposed, we can begin to take up the plaintiffs question
why, in 1999, did the Legislature chose to make only one of its strong public policies regarding
marriage that against same-sex marriage explicit by writing it into the text of LCC art. 3520.
To us the reason could not be more obvious. Of the three kinds of marriage against which Louisiana
has a strong public policy same-sex marriage, polygamous marriage, and closely-incestuous
marriage , only the first was an issue in 1999. At that time, the homosexual rights movement
was really starting to take off, manifested in a number of ways on a number of fronts: television
sitcoms featuring homosexuals in a positive light, sympathetic media reports, celebrities and public
intellectuals lining up to speak out against the last acceptable prejudice, and this is whats most
important state court decisions here and there recognizing a state constitutional right for same-
finding no violation, we make a clear distinction between the marriage of first cousins and marriages
contracted by more closely-related collaterals, i.e., uncle and niece, aunt and nephew, and siblings.
Id. at 743-44. Still later, the court added this: [W]e emphasize that the instant case involves the
marriage of first cousins. Although the previously noted laws, both past and present, applied
generally to all collaterals within the fourth degree, we reiterate that in finding no violation of a
strong public policy, we make a clear distinction between the marriage of first cousins and marriages
contracted between more closely-related collaterals. While the former is commonly accepted, the
latter is greatly condemned. Id. at 747-48. At the very least, then, these statements of the court left
the door open to the possibility that out-of-state unions between closer relatives might not be
recognized in Louisiana. But one might even go so far as to say (and we would) that these statements
should be read as obiter dictum to the effect that such unions cannot be recognized.
13
See La. R.S. 14:78 (Incest is the marriage to, or sexual intercourse with, any ascendant
or descendant, brother or sister, uncle or niece, aunt or nephew, with knowledge of their
relationship.)
Page 9 of 20
sex couples to enter into marriage-like civil unions
14
, if not into marriage itself
15
. By contrast, there
was, at that time, no movement afoot in the entertainment industry, the media, or academia to
legitimize multi-party marriages or marriages between close relatives and, more important still, no
judicial decisions had been rendered anywhere even hinting, much less holding, that there might be
some constitutional right, state or federal, to enter into such unions. For these reasons, then, back in
1999, whereas the Legislature faced a reasonable prospect that Louisiana judges might be called
upon to apply unamended Article 3520 to cases involving out-of-state same-sex marriages, the
Legislature faced no prospect whatsoever, reasonable or otherwise, that Louisiana judges might be
called upon to apply unamended Article 3520 to polygamous or closely-incestuous marriages. As
was only natural and reasonable, the Legislature, while choosing to provide the courts with
additional guidance and clarification to help them face the prospect that was on the horizon, did not
provide any such additional guidance and clarification to help them face other prospects that were
not. In short, there was at that time no need, no exigency, to take action on any subject other than
same-sex marriage.
16
14
Baker v. State, 744 A.2d 864 (Vt. 1999).
15
Baehr v. Miike, Civ. No. 91-1394,1996 WL 694235 (Haw. Dist. 1996), affd per curiam,
87 Haw.34, 950 P.2d 1234 (Haw. 1997). See also Brause v. Bureau of Vital Statistics, No. 3AN-95-
6562 CI, 1998 WL 88743 (Alaska Super. Feb. 27, 1998).
16
Though there was at that time no pressing reason for the Legislature to take action on
subjects such as polygamous marriage or closely-incestuous marriage, it is perhaps worthwhile to
consider what might have happened had there been, that is, had then been some sort of push
underway elsewhere in the United States in support of one or the other of these alternative forms of
marriage, plus a spattering of judicial decisions in other states finding a constitutional right to one
or the other. Though we admit we cannot be entirely sure, we are convinced, based on what we know
about the Legislature of 1999 in general and about the sponsors of the bill that became 3520.B in
particular, that it would have taken the same action against the threat to traditional opposite-sex
marriage posed by rising support outside Louisiana for polygamous marriage or closelyincestuous
Page 10 of 20
But, one might well ask, if it was in fact so clear circa 1999 that Louisiana had a strong
public policy against same-sex marriage, then why did the Legislature think that any such
additional guidance and clarification was necessary? That is a good question, one that demands
an answer, for without that answer one cannot fully understand the reason the Legislature enacted
Article 3520.B. But answering the question is awkward, for it requires getting into a matter of some
delicacy, namely, the Legislatures attitude toward what might be called the Louisiana judiciary,
by which we mean not only the Louisiana state courts but also the federal courts exercising
jurisdiction in Louisiana. It is safe to say that as of 1999, many legislators, including those who
backed Article 3520.B, were less than confident that every imaginable Louisiana judge before whom
an out-of-state same-sex marriage case might have been brought would have interpreted the
unamended article objectively and faithfully. To be more precise still, the fear was this: that such a
case might end up before a judge who, lacking a proper understanding of the limited role of the
judiciary within our constitutional system and blinded by a strong ideological commitment to some
form of political progressivism, would have conjured up some creative interpretation of the
unamended provision perhaps some sort of evolutive argument
17
the upshot of which would
marriage as it did in response to the threat posed thereto by rising support outside Louisiana for
same-sex marriage. That is to say, we believe the Legislature would have amended Article 3520 to
make explicit the states strong public policies against these forms of marriage as well. And, had that
happened, surely no one would have accused the Legislature of acting out of some invidious animus
toward those who had entered or hoped to enter into such marriages.
17
This is the expression used by students of civil law interpretative methodology to refer to
a method of interpreting Civil Code provisions that parallels in many ways the so-called living
constitution approach to interpreting the US Constitution. See generally Kenneth Murchison & J.
Randall Trahan, WESTERN LEGAL TRADITIONS & SYSTEMS: LOUISIANA IMPACT 175-76, 178, &186
(2003). Though scholarship on interpretative methodology in other civil law systems and in
Louisiana consistently mentions this method of interpretation, seemingly with approval, its propriety
nevertheless remains controversial. Some scholars, among whom we would include ourselves, fear
Page 11 of 20
have been that, whatever may have been true in the past, Louisiana no longer has a strong public
policy against same-sex marriage.
This was not, in our view, an unreasonable fear. It is not demeaning to the judiciary in
general nor to this court in particular to point out that there have been (and still are) such judges and
that there have been (and continue to be) such cases.
18
No one can deny it. And for that reason alone
the Legislatures fear must, we think, be counted as reasonable.
Let us, then, sum up. The Legislatures decision to enact LCC art. 3520.B, far from being a
bizarre departure from traditional conflict of laws principles, was an effort to codify those very
principles, an effort that represented a reasoned and proportioned response to the only threat to
those principles that was then on the horizon, namely, a potential push to get same-sex marriages that
had been validly celebrated in other states recognized in Louisiana. Theres nothing at all irrational
about that.
II. The strong public policy against same-sex marriage on which Louisiana Civil Code
article 3520.B is premised has its roots in Louisianas traditional civil law
understanding of marriage, according to which the procreation and rearing of children
are viewed as its natural concomitants; same sex-marriage cannot be reconciled with
this venerable understanding of marriage.
Though others may think otherwise, we believe that it is impossible for this court to pass on
that this method of interpretation, which can easily be abused, carries with it the very great danger
of undermining the balance of powers struck in the state constitution between the legislative and the
judicial branches of government and perhaps even the very principle of democratic government
itself.
18
Though there are some cases that everyone (or nearly everyone) would put into this
category, such as Dred Scott v. Sandford, 60 U.S. 393 (1857), which others should likewise be so
classified is, of course, to a large extent a matter of perspective. We know of progressives who would
categorize the supreme courts recent decisions in District of Columbia v. Heller, 554 U.S. 570
(2008), or Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), in this way. And
for many conservatives, of course, there is no better example than Roe v. Wade, 410 U.S. 113 (1973).
Page 12 of 20
the constitutionality of LCC art. 3250.B without considering the rationality of the strong public
policy against same-sex marriage that lies behind it. For that reason, we offer the following
observations about the theoretical foundations of that policy. As we will show, those foundations are
rooted in a time-honored understanding of marriage that binds it inextricably to the procreation and
rearing of children. And, as will become obvious, same-sex marriage is fundamentally incompatible
with this understanding.
Louisianas strong public policy against same-sex marriage, a policy reflected not only in
the Civil Code
19
but also in the state constitution
20
, is intimately tied to indeed, springs from
Louisianas traditional civil law
21
understanding of marriage. According to that understanding,
marriage necessarily concerns children, specifically, the procreation of children and, once they have
been born, their care, nurture, development, and protection. In this conception, the production and
rearing of children and not just any children, but children whom the parents produce together
through sexual intercourse with one another is thought to be one of the most fundamental ends
(purposes) of marriage. And the ideal setting for the rearing of children is understood to be the stable
and enduring union of the very parents from whose sexual congress those children spring.
19
See LCC art. 86 (Marriage is a legal relationship between a man and a woman that is
created by civil contract.) (emphasis added); id. art. 89 (Persons of the same sex may not contract
marriage with each other.)
20
See La. Const. Art. 12, 15 (Marriage in the state of Louisiana shall consist only of the
union of one man and one woman.)
21
The reference here, of course, is to Louisianas distinctive legal heritage, a heritage that
derives most immediately from the law of Spain and the law of France and, beyond them, from the
law of Rome. See Murchison & Trahan, supra note 17, at 51; J.-R. Trahan, The Continuing Influence
of Le Droit Civil and El Derecho Civil in the Private Law of Louisiana, 63 La. L. Rev. 1019, 1019
(2003).
Page 13 of 20
This traditional civil law understanding of the purpose and function of marriage is clearly
reflected in several of the earliest and most revered sources of Louisiana civil law. Consider, for
example, these passages from Las Siete Partidas, a 13
th
century compilation of Spanish civil law that
was in force in Louisiana until the late 1820s:
. . . while their bodies were different according to nature, they should be one, so far
as love was concerned, so that they could not be divided, preserving faithfulness to
one another; and, besides, that from this affection offspring might be born, by which
the world might be peopled . . . [N]one of these things can be lawfully accomplished
except by means of offspring, resulting from marriage brought about by the union of
man and woman. . . .
. . .
. . . . The third [reason marriage was established is] in order that a man may
have greater love for his children, he being certain that they belong to him. . ..
. . .
Very great benefit and many advantages arise from marriage . . . . The second
advantage, that of offspring, is having children lawfully to increase the human race,
and all should marry with this intention, not only those who cannot have children, but
also those who do have them. . . . Moreover, love should increase between husband
and wife, since they know that they cannot separate, and are more sure of their
children, and love them the more on this account. . . .
. . .
The principal reasons for the institution of marriage are two in number; first, to have
children and increase the race of men. . . .
22
Then there are these passages from Jean Domats seminal work on French civil law, Les Lois Civiles
dans Leur Ordre Natural, the reading of which was a prerequisite for admission to the Louisiana bar
up until at least the 1840s:
The engagement that marriage makes between the husband
and the wife, and that which birth makes between them and their
children, form a particular society in each family . . . .
. . . [T]he union between man and woman, . . . to institute
marriage, . . . was to be the source of multiplication and, at the same
time, of the liaison of human kind, and in order to give to this union
22
4 LAS SIETE PARTIDAS pt. 4, intro. & tit. 2, intro. & laws 3 & 4, at 877, 886, & 887 (Robert
I. Burns, S.J., Burns ed. & Samuel Parsons Scott tr., 2001).
Page 14 of 20
foundations proportionate to the characteristics of the love that must
be the bond within it . . . .
. . .
Thus, marriage, being instituted for the multiplication of
human kind, by the union of man and woman . . . .
23
Remarking on the interplay between marriage and procreation, Robert Pothier, the scholar whose
writings on the civil law of the French ancien rgime formed the basis for much of the Code
Napolon and, therefore, of the various Louisiana civil codes, wrote as follows:
Although carnal commerce is not of the essence of marriage, and the man and the
woman may by common consent abstain from it, nevertheless marriage gives to each
of the parties a right on the body of the other, which obligates each of them
reciprocally to grant this carnal commerce to the other, when it is demanded of him
or her. The reason for this obligation is drawn from the ends of marriage. The
principal end is the procreation of children, which clearly cannot be achieved without
this commerce.
24
Finally, there is the famous definition of marriage offered by J.-E.-M. Portalis, head of the legal
commission that wrote the Projet du Gouvernement, which, with certain modifications, became the
Code Napolon: [M]arriage . . . is the society of a man and a woman, who unite themselves in order
to perpetuate their species, in order to help each other by mutual assistance bear the weight of living,
and in order to share their common destiny.
25
Reading through these early Louisiana civil law sources, one cannot help but be struck by
the authors insistence on the intimate interdependence between marriage, on the one hand, and the
23
2 Jean Domat, LES LOIS CIVILES DANS LEUR ORDER NATUREL ch. III, secs. I-IV, pp. xiii-xvi
(2d ed. 1697) (J.R. Trahan tr., 2014).
24
Robert Pothier, TRAIT DU CONTRAT DE MARIAGE n
o
5, p. 4, in 5 OEUVRES DE POTHIER
(Dupin ed., nouv. ed. 1825) (J.R. Trahan tr., 2014).
25
J.-E.-M. Portalis, Prsentation au Corps Lgislatif, in 9 RECUEIL COMPLET DES TRAVAUX
PRPARATOIRES DU CODE CIVIL 138, at 140 (P.A. Fenet ed., 1827) (J.R. Trahan tr., 2014)
Page 15 of 20
procreation and rearing of children, on the other. For them, the optimal outcome for a child was that
he be born to and then reared by parents who were knit together for the long term by marriage and
to both of whom the child would be biologically related, that is, both of whom would recognize him
as their own flesh and blood.
Lest there be any misunderstanding, caused perhaps by our having cited these ancient
Louisiana civil law sources, let us point out that this understanding of marriage is not merely a thing
of the distant past. Still in the past, but not so remotely, the state supreme court, interpreting then
LCC art. 1556 (which provided for the revocation of donations inter vivos upon the birth of a child),
confirmed this understanding of marriage:
The object of marriage, it cannot be disputed, is the perpetuation of families; and the
procreation of children is, of necessity, in the contemplation of the parties, to that
contract. The interpretation which would make the Legislature declare a donation
made in favor of marriage, to be revoked by the happening of that event (the birth of
children) which, as all the authorities agree, is a principal object of marriage, is
inadmissible.
26
Much more recently, Professor Spaht, a noted authority on Louisiana family law, spoke out in favor
of the traditional understanding in these words:
A status that is marriage in all but name confirms the idea that marriage is about an
essentially private, intimate personal relationship publicly recognized and not about
the need to provide a biological father and mother committed to each other, hopefully
for life, for the purpose of rearing healthy children. Marriage alone has been the
unique publicly privileged intimate relationship. The law privileges marriage so that
men and women will be channeled into this vital social institution to continue to
perform the very public function of acculturating the next generation of citizens. That
acculturation is a long-term enterprise, expensive in both time and economic
26
Ledoux v. Her Husband, 10 La. Ann. 663 (1855).
Page 16 of 20
resources. There must be no other faux competitor if marriage, properly understood,
is to be protected.
27
But perhaps the best evidence that the traditional civil law understanding of marriage remains
alive in Louisiana is the content of Louisianas contemporary family law itself. This understanding
of marriage, which, to repeat, sees marriage and the procreation and rearing of children as necessarily
interdependent, undoubtedly underpins much of that law as it is expressed in the current Civil Code.
Let us consider, first, the relationship between marriage and procreation. It cannot be gainsaid that
the bulk of the law of paternal filiation, that is, the law that tells us who is the father of a given
child, is predicated on the law of marriage. Undoubtedly the most fundamental rule of paternal
filiation is that which is embodied in current LCC art. 185, which provides that [t]he husband of
the mother is presumed to be the father of a child born during the marriage or within three hundred
days from the date of the termination of the marriage.
28
Along the same lines is LCC art. 195, which
creates a presumption of paternity in favor of [a] man who marries the mother of a child . . . and
who, with the concurrence of the mother, acknowledges the child by authentic act. Next, let us
consider the relationship between marriage and child rearing. Among the legal effects of marriage
27
Katherine S. Spaht, State Constitutional Amendments Prohibiting Same-sex Unions:
Winning the Dual Object Argument, 7 FL. C. L. REV. 339, 361-62 (2005). See also Katherine S.
Spaht, Revolution and Counter-Revolution: the Future of Marriage in the Law, LOY. L. REV. 1, 47-
48 (2003). (Successful societies isolate and prefer a certain type of sexual union over others because
of the need of children for both mothers and fathers. As Maggie Gallagher summarized in her article
entitled, What Is Marriage For?, the purpose of marriage is inherently normative - to foster a certain
kind of sexual union between men and women characterized by caretaking, sharing of resources,
procreation, and long-term commitment in order to encourage the protection of children and the
reproduction of society.)
28
This is Louisianas current statement of the ancient Roman law rule pater is est quem
nuptiae demonstrant (the father is he whom marriage indicates). See generally J.-R. Trahan, Glossae
on the New Law of Filiation, 67 LA. L. REV. 387, 400-01 (2007) (gloss # 15).
Page 17 of 20
is the conferral on the married parents of family authority, described in LCC art. 99 as follows:
Spouses mutually assume the moral and material direction of the family, exercise parental authority,
and assume the moral and material obligations resulting therefrom. Regarding this parental
authority, it bears noting that it is the prerogative (and responsibility) only of married couples, as
the juxtaposition of LCC arts. 215-237 against LCC arts. 238-245 reveals.
29
One element of parental
authority (it might also be thought of as an element of the material obligations referred to in Article
99) that is of particular interest here is the responsibility of parents to support their children, a matter
addressed in LCC art. 227. It is telling that in this article the Legislature grounds the obligation of
support not in the mere fact of maternity or paternity itself, but rather in the very act of contracting
marriage.
30
Thus, we see that, again and again, the concept of marriage is linked up in the minds
of Louisianas legislators with the concepts of procreation and child rearing. And back of that
linkage, we believe, is the traditional civil law understanding that whatever else marriage may be
for, it is certainly for procreation and child rearing.
So much, then, for Louisianas traditional civil law understanding of marriage. What
remains for us to consider is what room there is, if any, for same-sex marriage within that
understanding. The indisputable answer is no room. It should be obvious that between the
traditional civil law notion of marriage and same-sex marriage there is an unbridgeable chasm.
Same-sex marriage, by its very nature, is not procreative. The sexual intercourse in which same-
29
This does not mean that single parents or unmarried parents have no power over their
children. They do. But it is the power of tutorship, see LCC art. 246, which suffers more
restrictions and enjoys fewer perks than parental authority.
30
This is not to say that unmarried parents have no obligation to support their children. They
do. See LCC art. 240. Nevertheless, the fact still remains that, for married parents, the obligation of
support springs at least in part from the marriage itself.
Page 18 of 20
sex spouses engage is, by nature, incapable of producing offspring. To produce offspring, such a
couple must reach outside themselves, beyond their union, to some third person, be it a friend or a
stranger. But in that case, the resulting offspring would be the biological progeny of just one of the
spouses, with the consequence that these offspring would end up being reared by parents to one of
whom they were not related biologically. For reasons that we have made clear, this represents a
significant departure from the traditional civil law ideal of marriage.
CONCLUSION
For these reasons, Amici curiae Professors Trahan and Spaht urge this court to uphold the
constitutionality of LCC art. 3520.B.
/s/ Gregory Scott LaCour
Gregory Scott LaCour (Bar No. 23823)
Amanda M. Pendleton (Bar No. 34022)
DAVID J. LUKINOVICH, APLC
4415 Shores Drive, Suite 200
Metairie, Louisiana 70006
Telephone: (504) 818-0401
Telecopy: (504) 818-0408
Counsel for Amici Curiae
Professor J. Randall Trahan &
Professor Katherine Shaw Spaht
Page 19 of 20
I hereby certify that, on May 12, 2014, the foregoing brief was filed with the Clerk of the
Court using the Court's CM/ECF system. I further certify that counsel for all parties in this case
are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ Gregory Scott LaCour
Gregory Scott LaCour
May 12, 2014
Page 20 of 20

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Plaintiffs
v.

JAMES D. CALDWELL, et, al.,

Defendants

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CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES
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BRIEF OF AMICUS CURIAE

The City of New Orleans (City) submits this Brief of Amicus Curiae in support of the
motion for summary judgment [Rec. Doc. No. 86] filed by Plaintiffs in the consolidated cases
(hereinafter Robicheaux). Robicheaux asserts that certain state agencies/officials do not
recognize same-sex marriages. Robicheaux further asserts that failure to recognize same-sex
marriages denies equal protection of the laws to same-sex couples. The City, however, has
enacted municipal laws recognizing domestic partnerships and allowing same-sex domestic
partners of City employees to receive benefits from the Citys health care plan as dependents of
their partners. See New Orleans City Code, 87-1 -87-9. The City submits this Brief to inform
the Court of the existence and substance of those laws and the Citys purpose in enacting those
laws.
Indeed, as expressly set forth in the New Orleans Municipal Code, the City has an
interest in strengthening and supporting all caring, committed, and responsible family forms.
See id. at 87-1. The City further specified that societal privileges and benefits accorded to
members of a marriage also should be extended to those who meet the qualifications of domestic
partnership. See id.

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Local law further establishes a mechanism whereby domestic partners may publicly
express and document their partnerships and sets forth qualifications for a domestic partnership.
See id. To establish a domestic partnership under local law, partners must submit a Declaration
of Domestic Partnership form
1
to the Clerk of the New Orleans City Council. See id. at 87-2
and 87-5. In completing the Declaration, the partners agree to be jointly responsible for basic
living expenses incurred in the domestic partnership. See id. at 87-2. The Clerk may accept
Declarations filed by domestic partners who reside in the City of New Orleans or by partnerships
having one partner who works in the City of New Orleans. See id. at 87-5(b). In addition, to
become domestic partners, neither person may be married, the two must not be related, and both
must be 18 years of age or older. See id. at 87-6. If one partner previously was in a domestic
partnership, that partnership must have terminated more than six months before submission of
the Declaration. See id. Termination of a domestic partnership is evidenced by filing a written,
notarized notice of termination with the Clerk of City Council. See id. at 87-8. Upon filing of
the Declaration, the City Chief Administrative Officer will provide the partners with a certificate
showing that the Declaration was filed. See id. at 87-5(a). A certified copy of the Declaration
may be used as evidence of the existence of a domestic partnership. See id. at 87-5(e).
Since the enactment of these municipal laws, the Clerk has received Declarations
establishing 472 domestic partnerships, and City employees have exercised their rights to use the
Citys employee benefits for their domestic partners. The Citys stated interest and purpose in
enacting laws recognizing domestic partnerships are supported by these facts. Accordingly, the
City submits this Brief in Amicus Curiae in support of Robicheauxs motion for summary
judgment.

1
The Declaration can be obtained from the Clerk of the New Orleans City Council.

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/s/ Sharonda R. Williams
SHARONDA R. WILLIAMS (LSB NO. 28809)
CITY ATTORNEY
1300 Perdido Street, Ste. 5E03
Tel. 504-658-9920
Facsimile: 504-658-9868
shrwilliams@nola.gov
Attorney for the City of New Orleans


I hereby certify that a copy of the foregoing pleading has been served on all counsel of
record through this Courts CM/ECF electronic filing system on this 12th day of May, 2014.
/s/ Sharonda R. Williams
SHARONDA R. WILLIAMS

1158700v1
Plaintiffs
v.
Defendants
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CIVIL ACTION
NO. 13-5090 C/W 14-97 &14-327
SECTION F(5)
REF: ALL CASES
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PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT AND DISMISSAL
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Plaintiffs oppose Defendants' Motion for Partial Summary Judgment and Dismissal (Rec.
Doc. 84).
I. SUMMARY OF ARGUMENT
In these consolidated marriage-equality cases, the Court permitted the parties to submit
cross-motions on whether the Fourteenth Amendment requires Louisiana to recognize same-sex
marriages validly celebrated in other jurisdictions. Rec. Doc. 75. Plaintiffs submitted a motion
for partial summary judgment, Rec. Doc. 86, and Defendants submitted a cross-motion for
partial summary judgment and dismissal. Rec. Doc. 84. The parties' cross-motions present two
primary issues: (1) the level of constitutional scrutiny that the Court should apply to Louisiana's
Anti-Recognition Laws
1
and (2) whether Defendants have provided a sufficient rationale.
To support their motion, each Defendant submitted an affidavit attesting that he or she
must refuse to recognize the marriages of same-sex couples because of current Louisiana law and
only for that reason. Barfield Aff., Rec. Doc. 84-4 at 8; Kliebert Aff., Rec. Doc. 84-5 at 8-
10; George Aff., Rec. Doc. 84-6 at 6-9. Defendants offer no evidence to support the laws
beyond those three affidavits, but they argue that they are entitled to summary judgment as a
matter of law. Specifically, Defendants offer two arguments in support of the Anti-Recognition
Laws: that the laws promote heterosexual marriage, which "links children with their biological
parents", and that recognition of same-sex marriage should only occur through "social
consensus." Both arguments are specious and belied by the undisputed facts of this case.
2

1
As defined in Plaintiffs' original brief, Louisiana's Anti-Recognition Laws are Article XII, Section 15 of the
Louisiana Constitution, Louisiana Civil Code article 3520(B), and any other Louisiana laws denying
recognition to valid same-sex marriages celebrated in other jurisdictions.
2
In opposition to Defendants' motion, Plaintiffs incorporate the argument and evidence they submitted to
support their motion for partial summary judgment.
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The Anti-Recognition Laws do not promote heterosexual marriage at all. Instead, they
harm same-sex couples and their families. It is an undisputed fact that three of the Plaintiff
couples are raising children. One couple, Courtney and Nadine Blanchard, used assisted
reproductive technology to conceive their child. Ex. 3 to Pls.' Mot, Rec. Doc. 86-7 at 13; Ex. 4
to Pls.' Mot, Rec. Doc. 86-8 at 13. The couple used Courtney's egg, but Nadine carried the
child.
3
Id. Because Nadine gave birth to the child, Louisiana only recognizes her as the child's
mother though the child is biologically Courtney's. Id. The Blanchards exemplify the deficiency
of Defendants' contention that the Anti-Recognition Laws have the purpose of "linking children
with biological parents." Rec. Doc. 84-1 at 16. Instead, these laws have the opposite effect. The
sole purpose and effect of the Anti-Recognition Laws is to demean and deny recognition to
validly married same-sex couples. In the process, the laws harm children by denying a link
between a parent and her childeven when they share a biological link.
Defendants' argument that Louisiana law should only change through social consensus
lacks fundamental understanding of (or simply ignores) the history of Louisiana and current
events. In the late 1950's and 1960's, despite a lack of social consensus on the issue, this Court
was required to intervene when Louisiana resisted racial integration. And just last month, the
Louisiana Legislature refused to prohibit housing discrimination on the basis of sexual
orientation and maintained an anti-sodomy law that blatantly violates the United States
Constitution. Clearly, discrimination against Plaintiffs and other same-sex couples will not end
through social consensus. Like racial segregation, a change in the unconstitutional Anti-
Recognition Lawswhich serve only to institutionalize and sanction discrimination against gay,
lesbian, and bisexual Louisianansrequires intervention by this Court.

3
Many couples are using this method of conception, known as reciprocal in vitro fertilization.
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II. LAW AND ARGUMENT
A. The Court Should Apply Heightened Scrutiny to Defendants' Equal
Protection Violation.
Plaintiffs discussed the reasons for heightened scrutiny in their opening memorandum.
Rec. Doc. 86-1 at 9-16. In United States v. Windsor, the Court expressly applied "careful
consideration" to consider the constitutionality of DOMA because the law's purpose and effect
was to disapprove and stigmatize same-sex couples. 133 S. Ct. 2675, 2693 (2013). The Court's
"careful consideration" review was later held by the Ninth Circuit to be equivalent to heightened
scrutiny. SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014)
4
; see
also Latta v. Otter, No. 1:13-00482, 2014 U.S. Dist. LEXIS 66417 at *52 (D. Idaho May 13,
2014) ("If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have
applied rational basis scrutiny in Windsor. But, as recognized in SmithKline, the Supreme Court
applied heightened scrutiny.").
Louisiana's Anti-Recognition Laws reflect the same disapproval and stigmatization of
same-sex couples as DOMA, and they warrant the same treatment. Defendants boldly state that
Plaintiffs' suggestion that the Anti-Recognition Laws reflect discrimination and animus (by
comparison to race cases, such as Loving v. Virginia) "demeans and humiliates the citizens of
those 34 states, Louisiana among them, who have elected to define marriage as the union of a
man and a woman." Rec. Doc. 84-1 at 24. It takes real cheek for Defendants to assert that it is
Plaintiffs who demean others, especially considering the hardships that Plaintiffs and other same-
sex couples encounter daily due to the laws that Defendants enforce. Amici J. Randall Trahan

4
Defendants seek to limit SmithKline by noting that a call has been made in the Ninth Circuit for briefing on
whether SmithKline should be reviewed en banc. But the SmithKline appellant has not argued that the
original Ninth Circuit panel erred in its interpretation of Windsor, but rather that the panel's application of
Batson was flawed because a comparative juror analysis was required. See Rec. Doc. 92 in No. 11-17357
(9th Cir.). In any event, the case's reasoning is persuasive authority.
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and Katherine Shaw Spaht speculate extensively in their brief about the legislature's intent in
enacting Louisiana Civil Code Article 3520(B) in 1999. Rec. Doc. 97 at 5-12. But amici do not
cite to any legislative history and simply opine as to what the legislature must have intended.
5
In
any event, their discussion is irrelevant. "When a distinction between groups of persons appears
on the face of a state law or action, an intent to discriminate is presumed and no further
examination of legislative purpose is required." Secsys, LLC v. Vigil, 666 F.3d 678, 685 (10th
Cir. 2012); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1281-82 (N.D. Okla.
2014), appeal docketed 14-5003 (10th Cir.).
Like DOMA, the Anti-Recognition laws "creat[e] two contradictory marriage regimes
within the same State" and "place[] same-sex couples in an unstable position of being in a
second-tier marriage." Windsor, 133 S. Ct. at 2694. "The differentiation demeans the couple,
whose moral and sexual choices the Constitution protects." Id. The Anti-Recognition Laws also
"divest[] married same-sex couples of the duties and responsibilities that are an essential part of
married life and that they in most cases would be honored to accept were [the Anti-Recognition
Laws] not in force." Id. at 2695. And thus, like DOMA, the Anti-Recognition Laws are a
"deprivation of the liberty of the person" that is protected by the Constitution. Id.
Currently, the Ninth Circuit, the Second Circuit, several district and state supreme courts,
and the Executive Branch have all determined that heightened scrutiny applies to sexual

5
Trahan and Spaht also rely on "ancient Louisiana civil law sources" to support their argument for the
current definition of marriage, including Spanish civil law from the 1820's and, Louisiana's Civil Code
from 1825 and 1827 (originating from the Napoleonic Code). These same "ancient sources" served as a
source for Louisiana's Code Noir, which sanctioned slavery, prohibited African Americans from voting or
holding office, and imposed a three-tiered racial caste system. See, e.g., United States v. Louisiana, 225 F.
Supp. 353, 363 (E.D. La. 1963) ("Thus, from the Code Noir of 1724 until 1864, the organic law of the state
ordained that only free white males could vote or hold office. This was in a state where there were
thousands of free men of color."). Just because a law derives from an "ancient source" does not render it
unassailable. See Heller v. Doe, 509 U.S. 312, 326 (1993) (the "[a]ncient lineage of a legal concept does
not give it immunity from attack for lacking a rational basis.").
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orientation classifications.
6
The Fifth Circuit has had no reason to address the issue since
Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004).
7
Even then, the Fifth Circuit did not
need to examine the appropriate level of scrutiny because the alleged treatment of the plaintiff
would have been unconstitutional under rational basis scrutiny. Id. at 532-33 ("Defendants have
not attempted to argue that according homosexuals less protection than other inmates would
advance any legitimate aim."). And cases decided before Lawrence v. Texas, 539 U.S. 558
(2003), date from the period before the Supreme Court recognized the unconstitutionality of
criminalizing consensual intimacy between same-sex couples. Bowers v. Hardwick, 478 U.S.
186 (1986), overruled by Lawrence. Because of the significant doctrinal evolution regarding gay
rights in recent years (as reflected by Romer,
8
Lawrence, and Windsor), the historical and
ongoing discrimination experienced by gay and lesbian citizens, and their political powerlessness
to remedy that discrimination, this Court should agree with the Second and Ninth Circuits and
hold that sexual orientation is a quasi-suspect classification that warrants heightened equal
protection scrutiny. SmithKline, 740 F.3d at 484; Windsor, 699 F.3d at 185.

6
SmithKline, 740 F.3d at 484; Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012), aff'd 133 S. Ct.
2675 (2013); Pederson v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 333 (D. Conn. 2012); Golinski v.
U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 989 (N.D. Cal. 2012); Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 997 (N.D. Cal. 2010), aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated
and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); In re Balas, 449 B.R. 567, 576
(Bankr. C.D. Cal. 2011); Griego v. Oliver, 316 P.3d 865, 884 (N.M. 2013); Kerrigan v. Comm'r of Pub.
Health, 957 A.2d 407, 473 (Conn. 2008); In re Marriage Cases, 183 P.3d 384, 444 (Cal. 2008); Letter from
Eric Holder, Att'y Gen., to Congress Regarding Litigation Involving the Defense of Marriage Act (Feb. 23,
2011), http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.
7
In James v. Hertzog, 415 F. App'x 530, 532 (5th Cir. 2011), the court cited Johnson for the proposition that
rational basis applies to sexual orientation classifications; however, the sentence is dicta because the court
determined that the plaintiff was not discriminated against on the basis of sexual orientation.
8
Romer v. Evans, 517 U.S. 620 (1996).
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B. The Court Should Hold that Plaintiffs' Right to Marry Is a Fundamental
Right Subject to Strict Scrutiny.
Contrary to Defendant's argument, Plaintiffs do not ask this Court to "break new ground"
by recognizing that their right to marry is a fundamental liberty interest. Rec. Doc. 84-1. The
right to marry has long been recognized as a fundamental right.
9
All individuals share in
fundamental rights. U.S. Const. amend. XIV, 1 ("nor shall any State deprive any person
oflibertywithout due process of law") (emphasis added); see also Kitchen v. Herbert, 961 F.
Supp. 2d 1181, 1204 (D. Utah 2013), appeal docketed, No. 13-4178 (10th Cir.). Amici curiae
Lambda Legal et al. ably explained that the recognition of Plaintiffs' marriages is not the creation
of a new "right to same-sex marriage," just as the right to marry that was protected by Loving
was not a "right to inter-racial marriage." Rec. Doc. 92 at 9-10. Characterizing the right as a
"right to same-sex marriage" repeats the mistake of Bowers, which refused to recognize a right to
"homosexual sodomy", by limiting the right too narrowly. Latta, 2014 U.S. Dist. LEXIS at *40
("Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights
to make intimate personal decisions as heterosexual individuals enjoy, but that judicial attempts
to parse those rights out of existence will be met with a harsh rebuke.").
Defendants criticize other district courts that have extended the right to marry to same-
sex couples, arguing that because those courts do not limit the right to heterosexual marriage,
they fail to carefully describe the asserted fundamental liberty interest. Rec. Doc. 84-1 at 22.
But in the past, the fact that a particular right was not enjoyed by all did not mean that the right
was not fundamental. For instance, the right to vote is a fundamental right. Angel v. Fairfield,

9
Loving v Virginia, 388 U.S. 1, 12 (1967) (The "freedom to marry has long been recognized as one of the
vital personal rights essential to the orderly pursuit of happiness by free men."); see also Meyer v.
Nebraska, 262 U.S. 390, 399 (1923); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); M.L.B. v. S.L.J.,
519 U.S. 102, 116 (1996).
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793 F.2d 737, 739 (5th Cir. 1986). Nevertheless, women were prohibited from voting until a
1920 constitutional amendment was passed after gradual challenge and repeal of local and state
laws that denied women this fundamental right. Lawrence recognized a right to sexual intimacy
between unmarried consenting adults, even though it was historically forbidden. 539 U.S. at 569
(2003) (Scalia, J., dissenting) (discussing the history of anti-sodomy laws).
Although there is no tradition of legal same-sex marriage in Louisiana, marital
recognition would vindicate Plaintiffs' exercise of their fundamental right to marry that the
Fourteenth Amendment extends to all persons. Same-sex couples are, like all others, "entitled to
recognition and protection to enhance their own liberty." Windsor, 133 S. Ct. at 2695.
Louisiana's Anti-Recognition Laws share with DOMA the "purpose and effect to disparage and
injure" (id. at 2710) same-sex couples in violation of their fundamental right to marry, and the
result of "treating those persons as living in marriages less respected than others" (id. at 2696).
Thus, the laws are subject to strict scrutiny.
C. Defendants Have Not Offered a Rational Justification for the Anti-
Recognition Laws.
The Court should employ heightened or strict scrutiny to assess the constitutionality of
the Anti-Recognition Laws. But even the lowest tier of scrutiny requires Defendants to
demonstrate that the challenged laws are rationally related to a legitimate state interest. Doe v.
Jindal, 851 F. Supp. 2d 995, 1006 (E.D. La. 2012). The state "may not rely on a classification
whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or
irrational." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985). In
instances where the Court has reason for concern about possible discrimination against a
minority group, rational basis review becomes "a more careful assessment" that is subject to
"greater rigor" than traditional rational basis review. Massachusetts v. U.S. Dep't of Health and
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Human Serv., 682 F.3d 1, 11 (1st Cir. 2012); United States v. Then, 56 F.3d 464, 468 (2d Cir.
1995) (Calabresi, J., concurring).
Defendants offer two rationales for the Anti-Recognition Laws: (1) "linking children
with an intact family formed by their biological parents," Rec. Doc. 84-1 at 16, and (2) "to ensure
that a change as profound as altering the basic definition of marriage would occur only through
wide social consensus," id. at 18. Neither purported rationale satisfies rational basis scrutiny.
1. "Natural Procreation" Is Not a Sufficient Basis for the Anti-
Recognition Laws.
The Court should reject Plaintiffs' "natural procreation" rationale for several reasons.
a. The Anti-Recognition Laws Do Not Affect Heterosexual
Persons or Their Marriages.
First, the Defendants cannot rationally link the Anti-Recognition Laws to their goal of
promoting "natural procreation" because the laws do not affect heterosexuals at all. The Anti-
Recognition Laws only affect same-sex couples. Defendants do not explain how denying
recognition to same-sex marriages has any effect on heterosexuals whatsoever.
10
See Perry v.
Schwarzenegger, 704 F. Supp. 2d at 972 ("permitting same sex couples to marry will not affect
the number of opposite sex couples who marry, divorce, cohabit, have children outside of the
marriage or otherwise affect the stability of opposite sex marriages.").
Nor do the Defendants explain how the Anti-Recognition Laws work to link children
with biological parents. If a heterosexual woman becomes pregnant, the incentives for her and

10
Amici Alan J. Hawkins and Jason S. Carroll make the incredible and, frankly, bizarre conclusory argument
that recognition of same sex marriage will somehow impact the "way that heterosexual men create their
masculine identities." They posit that defining marriage in "genderless terms" will cause heterosexual men
to "view marriages as unrelated to their sense of maleness" and "diminish the likelihood of men being
responsible fathers." Rec. Doc. 94 at 19-21. These amici present no facts demonstrating that heterosexual
men are impacted at all by how a state defines marriage. The argument also begs the question whether all
laws are meant only to serve the interests of protecting heterosexual men and to prevent them from
devolving into a state of "immature, self-centered masculinity." Id. at 17.
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her partner to marry are exactly the same, whether or not Louisiana recognizes same-sex couples
who wed elsewhere. Thus, the State's purported justification fails to provide the necessary
rational link between the classification and the professed governmental end. For this reason,
many other courts presented with this rationale for same-sex marriage have found it
unpersuasive. See, e.g., Bishop, 962 F. Supp. 2d at 1291 ("Marriage is incentivized for naturally
procreative couples to precisely the same extent regardless of whether same-sex couples (or
other non-procreative couples) are included."); Bostic v. Rainey, 970 F. Supp. 2d 456, 478 (E.D.
Va. 2014) appeal docketed sub nom. Bostic v. Schaefer, No. 14-1167 (4th Cir.) ("[T]he purported
'for-the-children' rationale fails to justify Virginia's ban on same-sex marriage because
recognizing a gay individual's fundamental right to marry can in no way influence whether other
individuals will marry, or how other individuals will raise families."); De Leon v. Perry, No. 13-
00982, 2014 U.S. Dist. LEXIS 26236, at *42-43, appeal docketed (W.D. Tex. 2014)
("Defendants' proffered reason fails rational basis because Defendants have failed to establish
how recognizing a same-sex marriage can influence, if at all, whether heterosexual couples will
marry, or how other individuals will raise their families."); Goodridge v. Dep't of Pub. Health,
798 N.E.2d 941, 963 (Mass. 2003) ("The department has offered no evidence that forbidding
marriage to people of the same sex will increase the number of couples choosing to enter into
opposite-sex marriages in order to have and raise children.").
b. Procreation Is Not a Prerequisite for Different-Sex
Marriage and Should Not Be Prerequisite for Same-Sex
Marriage.
Louisiana has never limited recognition of marriage to only the marriages of couples who
intend to have children. Indeed, recognition of a heterosexual couple's marriage never hinges on
whether they can or plan to have children. Under the "natural procreation" rationale, however,
the State could constitutionally deny or withdraw the right to marry or marital benefits from
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infertile citizens or couples who do not intend to have children. See Kitchen, 961 F. Supp. 2d at
1201 ("Under the State's reasoning, a post-menopausal woman or infertile man does not have a
fundamental right to marry because she or he does not have the capacity to procreate."). But
Defendants admit that such an inquiry into its citizens' procreative intentions or capacity would
be an unconstitutional governmental invasion of privacy. Rec. Doc. 84-1 at 17 ("Louisiana need
not violate its citizens' privacy to prove it is rational to link marriage to procreation."). Indeed,
Defendants undercut the logic of their own argument: "The simple answer: of course marriage
laws have never imposed anything so bizarre as 'procreative prerequisites.'" Id. at 16. How then,
is it appropriate for the State to justify its ban on marriage recognition by arguing that same-sex
couples are unable to "naturally" procreate? Id. at 15. Defendants cannot constitutionally
impose a "procreative prerequisite" on only same-sex couples by using sexual orientation as a
proxy for fertility, assuming that gays and lesbians are infertile, denying them marriage rights,
and (as in the case of the Blanchards) denying them a legally-recognized link to their own
biological children.
The reality is that both heterosexual and same-sex couples in committed relationships use
alternative means such as adoption or assistive reproductive technology to have children.
11
Use
of such means does not make those couples or their children less worthy of state recognition.
Here, three of the Plaintiff couples demonstrate that same-sex couples are having and raising
children in Louisiana. "The reality is that same-sex couples, while not able to 'naturally

11
Louisiana recognizes that persons, other than biological parents, are fully capable of caring for and raising
children. La. Child. Code art. 1221 ("a single person, eighteen years or older, or a married couple jointly
may petition to privately adopt a child."). Indeed, Louisiana law permitted Plaintiff Nick Van Sickels to
adopt his daughter as a "single person." But because his marriage to Andrew Bond is not recognized in
Louisiana, Andrew cannot adopt their daughter. If Defendants' purpose of the Anti-Recognition Laws is
"linking children with their biological parents", then the adoption laws run counter to that purpose. If the
Defendants' purpose is "preservation of the family unit [and] avoidance of the stigma of illegitimacy," then
Nick, Andrew, and their daughter demonstrate why the Anti-Recognition Laws are not related to that stated
purpose.
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procreate', can and do have children by other means." Bishop, 962 F. Supp. 2d at 1292. As one
federal district court noted recently,
Prohibiting gays and lesbians from marrying does not stop them from forming
families and raising children. Nor does prohibiting same-sex marriage increase
the number of heterosexual marriages or the number of children raised by
heterosexual parents. There is, in short, no logical connection between banning
same-sex marriage and providing children with an 'optimal environment' or
achieving 'optimal outcomes.'
Deboer v. Snyder, No. 12-10285, 2014 U.S. Dist. LEXIS 37274, at *40 (E.D. Mich. March 21,
2014).
Defendants and amici in support of Defendants seem to be arguing for a "most favored"
class of children"children with an intact family formed by their biological parents." Rec. 83-1
at 15. Defendants and their supporters argue that Louisiana marriage laws are meant to protect
"not just any children, but children whom the parents produce together through sexual
intercourse with one another." Rec. Doc. 97, Br. of J. Randall Trahan and Katherine Shaw Spaht,
at 13. Demeaning the worth of same-sex families (as well as different-sex adoptive families,
single-parent adoptive families, and blended families) is the type of prejudice that Windsor
criticized and rejected. 133 S. Ct. at 2694.
Defendants' supporters also cite discredited social science studies to argue that a
"biological mother and father provide optimal child outcomes." Rec. 91, Br. of Social Science
Professors at 10, citing study by Mark Regnerus. In truth, there is no credible scientific support
that only opposite sex, married, biological parents are capable of successfully raising children.
See Deboer, 2014 U.S. Dist. LEXIS 37274 at *22-23, 30 (finding Regnerus's study and
testimony "represent a fringe viewpoint", "entirely unbelievable and not worthy of serious
consideration" and that the study was "hastily concocted at the behest of a third-party funder"
who "clearly wanted a certain result, and Regnerus obliged."). For a further discussion of
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accepted and modern research supporting adoption by different-sex and same-sex couples,
Plaintiffs respectfully refer the Court to the Brief of Amicus Curiae the Donaldson Adoption
Institute in Support of Plaintiffs. Rec. Doc. 99.
But the Court need not resolve any disputes among the social scientiststo the extent
there is a legitimate disputebecause there is no logical link between child welfare and the Anti-
Recognition Laws. See Latta, 2014 U.S. Dist. LEXIS at *66 ("The parties' debate over the
scientific literature distracts from the essential inquiry into the logical link between child welfare
and Idaho's wholesale prohibition of same-sex marriage. That link is faulty."). If the State's
goal is to prevent or discourage same-sex couples from having and raising children, the Anti-
Recognition Laws are an ineffective, illogical, bizarre, and irrational means to achieve it. See
Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 994 (S.D. Ohio 2013), appeal docketed ("there is
simply no rational connection between the Ohio recognition marriage bans and the asserted goal,
as Ohio's marriage recognition bans do not prevent gay couples from having children"). Nor
would a goal of preventing gay and lesbian citizens from having families be constitutional or
legitimate. Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (mandated
sterilization of habitual criminals unconstitutional). Like the other states before it, Louisiana
fails to "advance any reason why the government may use sexual orientation as a proxy for
fertility or why the government may need to take into account fertility when legislating." Perry
v. Schwarzenegger, 704 F. Supp. 2d at 997.
c. The State's Procreation Argument Disregards Supreme
Court Precedent.
Third, Defendants' argument ignores that other benefits and purposes of marriage cannot
be denied to same-sex couples without legitimate justification. In Turner v. Safley, 482 U.S. 78
(1987), the Court held that prisoners have a right to marry even though they cannot procreate.
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Writing for the Court, Justice O'Connor identified many aspects and benefits of marriage that
created a right to marry separate and apart from a person's reproductive ability or intent:
First, inmate marriages, like others, are expressions of emotional support and
public commitment. These elements are an important and significant aspect of the
marital relationship. In addition, many religions recognize marriage as having
spiritual significance; for some inmates and their spouses, therefore, the
commitment of marriage may be an exercise of religious faith as well as an
expression of personal dedication. Third, most inmates eventually will be released
by parole or commutation, and therefore most inmate marriages are formed in the
expectation that they ultimately will be fully consummated. Finally, marital status
often is a precondition to the receipt of government benefits (e. g., Social Security
benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and
other, less tangible benefits (e. g., legitimation of children born out of wedlock).
These incidents of marriage, like the religious and personal aspects of the
marriage commitment, are unaffected by the fact of confinement or the pursuit of
legitimate corrections goals.
Taken together, we conclude that these remaining elements are sufficient to form
a constitutionally protected marital relationship in the prison context.
482 U.S. at 95-96. All the reasons that Justice O'Connor identified for why inmates have a
fundamental right to marry apply equally to same-sex couples.
12
See Kitchen, 961 F. Supp. 2d at
1211. Turner did not tie marriage to procreation because, of course, the Missouri inmates could
not procreate because they were confined. Thus, a couple cannot be denied a right to marry
because they cannot or do not intend to "naturally procreate." Cf. Lawrence, 539 U.S. at 567 ("it
would demean a married couple were it to be said marriage is simply about the right to have
sexual intercourse").
13

12
This includes the legitimation of children born out of wedlock. Louisiana permits the husband of a single
mother to establish a presumption of filiation to her child without proof of a biological link. See La. Civ.
Code art. 195. Same-sex couples, just like different-sex couples, might marry to legitimize and establish
filiation between a child and stepparent.
13
Amici Trahan and Spaht discuss a "positive duty of 'fidelity'" that is owed by spouses under article 98 of
the Louisiana Civil Code. Rec. Doc. 97 at 7 n. 8. This "duty" reeks of outdated sexist attitudes that our
society long ago rejected and would present several insurmountable constitutional problems if the courts
attempted to enforce it today. In 1990, the Louisiana Legislature recognized the evolution in thinking on
this matter by eliminating the spousal rape exception from Louisiana law. See La. R.S. 14:41; 1990 La.
Act. 722.
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d. The True Purpose of the Anti-Recognition Laws Are
Not Procreation, But Rather Discrimination.
Finally, the "natural procreation" rationale fails because, clearly, the true purpose of these
laws is to express Louisiana's disapproval of gays and lesbians. The State's proposed
justification in promoting a "biological link" is belied by the facts. As explained, Plaintiff
Courtney Blanchard is denied filiation to her biological child because her wife carried the child
to term. Their child and hundreds of others are denied the protections that flow from having two
recognized parents, and they suffer the same humiliation that disturbed the Windsor court. See
133 S. Ct. at 2694. "The only effect the bans have on children's well-being is harming the
children of same-sex couples who are denied the protection and stability of having parents who
are legally married." Obergefell, 962 F. Supp. 2d at 994-995. The result is exceedingly harmful
to the couple and their children.
The illogic of Defendants' argument is highlighted by Trahan and Spaht. They argue that
the purpose of marriage is to allow "spouses [to] mutually assume the moral and material
direction of family," to ensure the "responsibility of parents to support their children," and that
such "obligation of support springs at least in part from the marriage itself." Rec. Doc. 97 at 18.
The Anti-Recognition Laws, however, effectively annul Plaintiffs' marriages, prevent
legitimization of their children, and strip them of the responsibilities of marriage, including the
support and guidance of their children. For instance, if the legally recognized parent of a child
dies or becomes incapacitated, the surviving "non-legal" parent has no automatic authority under
the law to make decisions for the child or even to retain custody of the child. This example also
demonstrates why the Court should reject Defendants' suggestion that same-sex couples can
"arrang[e] their affairs by contract" in lieu of Louisiana's recognition of their marriages. Rec.
Doc. 84-3 at 8. Louisiana law provides no mechanism to "contract" for custody of a child. The
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only means for obtaining custody of a non-biological child is through adoption, but the Anti-
Recognition Laws preclude Plaintiffs from adopting their children jointly. Far from promoting
stable, intact families that are beneficial to childrearing, the Anti-Recognition Laws are
detrimental to stable families.
Windsor makes clear that same-sex couples and children raised by same-sex couples are
as deserving as other families and children. 133 S. Ct. at 2694. Louisiana has not demonstrated
any legitimate reason for its refusal to recognize marriages same-sex couples or extend the
benefits and protections of the law to their children.
2. Plaintiffs Need Not Wait for Social Consensus to Vindicate
Their Constitutional Rights.
Because Defendants assume that Louisiana may permissibly deny recognition to same
sex marriage, they argue that Plaintiffs must wait for the formation of a social consensus in favor
of same-sex marriage before realizing the constitutional guarantee of due process and equal
protection of the law. But where individual rights are violated, the courts have never required
nor waited for social consensus before vindicating these rights. By definition, there is no "social
consensus" when minority rights have been violated by the government. Indeed, the past sixty
years of constitutional jurisprudence have been marked by important decisions when the court
vindicated minority rights ahead of social consensus.
Well before social consensus existed on the issue, Brown v. Board of Education held that
segregation in public schools violated the equal protection rights of plaintiff students. 347 U.S.
483, 495 (1954). The utter lack of social consensus surrounding school desegregation at the time
was most dramatically displayed in the battle over integration of Little Rock's Central High
School. See Cooper v. Aaron, 358 U.S. 1, 8-9 (1958). But in Brown v. Board of Education
(Brown II), the Court ordered that desegregation occur "with all deliberate speed," despite the
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difficulties presented by integration.
14
349 U.S. 294, 301 (1955). The Court emphasized that "it
should go without saying that the vitality of these constitutional principles cannot be allowed to
yield simply because of disagreement with them." Id. at 300.
As Judge Wisdom wrote in Hall v. St. Helena Parish School Board, "[o]ne of the
purposes of the Constitution of the United States was to protect minorities from the occasional
tyranny of majorities. No plebiscite can legalize an unjust discrimination." 197 F. Supp. 649,
659 (E.D. La. 1961). In Hall and numerous other cases, the Fifth Circuit repeatedly enforced the
rule of Brown against state legislative and executive action designed to maintain school
segregation. Id.; see, e.g., Lee v. Macon Cnty. Bd. of Ed., 448 F.2d 746, 753-54 (5th Cir. 1971);
Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 847, 852 (5th Cir. 1967); United States v. Jefferson
Cnty. Bd. of Ed., 372 F.2d 836, 878 (5th Cir. 1966); Singleton v. Jackson Mun. Separate Sch.
Dist., 355 F.2d 865, 869-70 (5th Cir. 1966); Singleton v. Jackson Mun. Separate Sch. Dist., 348
F.2d 729, 731 (5th Cir. 1965); Bush v. Orleans Parish Sch. Bd., 308 F.2d 491, 499 (5th Cir.
1962); Poindexter v. La. Fin. Assistance Comm'n, 275 F. Supp 833, 856-57 (E.D. La. 1967). The
Louisiana Legislature and Governor met Brown's desegregation decree with multiple, varied
attempts to circumvent the law, even passing a constitutional amendment aimed at protecting
segregation. Poindexter, 275 F. Supp. at 835; see also Bush, 308 F.2d at 493-94; Hall, 197 F.
Supp at 659. The electorate of Louisiana approved the constitutional amendment, but the Fifth
Circuit declared it unconstitutional and invalidated it. See Poindexter, 275 F. Supp. at 840-41.

14
Because school desegregation vindicated constitutional guarantees, the courts repeatedly reiterated its
necessity despite the violence it provoked and the serious difficulties imposed by its implementation. See,
e.g., Cooper, 358 U.S. at 8-9. Although it does not affect the Court's analysis, Plaintiffs note that
recognition of the marriages of Plaintiffs and other same-sex couples merely integrates them in a system of
regulations already in place.
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The citizens of Louisiana responded to integration with "demonstrations, picketing,
stone-throwing, and turmoil that continued for months; all white parents withdrew their children
from one of the schools." Bush, 308 F.2d at 494. Despite this opposition and without social
consensus, the Fifth Circuit consistently required Louisiana and the other states within its
jurisdiction "to give effect to [constitutional] rights . . . by providing equal educational
opportunities." Jefferson Cnty., 372 F.2d at 873. Judge Wisdom's words regarding education are
relevant to marriage today: "When the state provides a benefit, it must do so evenhandedly.
'Such an opportunity, where the state has undertaken to provide it, is a right which must be made
available to all on equal terms.'" Hall, 197 F. Supp. at 659 (quoting Brown, 347 U.S. at 493).
The school desegregation struggle demonstrates that social consensus is unfortunately
often on the wrong side of minority constitutional rights. On a micro-level, the restrictive
covenants at issue in Shelley v. Kraemer reflected the consensus among thirty property owners to
allow only white homeowners into their neighborhood. 334 U.S. 1, 4 (1948). The Supreme
Court held that, though the covenants were adopted by private actors, judicial enforcement
violated the equal protection clause. Id. at 21. The Court's decision recognized the need for
minorities to be protected from housing discrimination at the hands of private actors because "the
enjoyment of property rights [is] . . . an essential pre-condition to the realization of other basic
civil rights and liberties." Id. at 10. But this pre-condition is not guaranteed to Plaintiffs. On
April 28, 2014, the Civil Law and Procedure Committee of the Louisiana House of
Representatives voted to shelve a bill that would guarantee protection from housing
discrimination for gay, lesbian, bisexual, and transgender individuals.
15

15
See Emily Lane, Louisiana House Kills Bill Adding LGBT People to Housing Non-discrimination Law,
NOLA.com, April 28, 2014, available at
http://www.nola.com/politics/index.ssf/2014/04/lbgt_fair_housing_louisiana_ho.html. Attached hereto as
Exhibit 1.
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In the First Amendment context, the Fifth Circuit held in Gay Student Services v. Texas
A&M University that Texas A&M could not abridge the freedom of association of certain gay
students by denying recognition to their student group. 737 F.2d 1317, 1330 (5th Cir. 1984).
Citing Texas' criminal prohibition against "homosexual conduct," the university refused to
recognize the student group because it was "likely to 'incite, promote and result' in homosexual
activity." Id. at 1321. Obviously, given the criminal sodomy law, no consensus supporting gays'
right of association existed in Texas at that time. But, although public opinion was against the
students, the court ensured their freedom of association. Id. at 1324; see also Church of Lukumi
Babalu Aye v. City of Hialeah, 508 U.S. 520, 538 (1993) (holding that a town ordinance
preventing animal sacrifice "singled out for discriminatory treatment" the religious practices of a
Santeria church that tried to open in the town).
Of course, the Texas criminal sodomy statute has now been overturned by Lawrence as a
violation of a fundamental due process right. 539 U.S. 558. Even after this clear constitutional
ruling, on April 22, 2014, the Louisiana Legislature has refused to repeal provisions of
Louisiana's crimes against nature statute directed to consensual intimacy between adults.
16
This
shocking statement from the Louisiana Legislature demonstrates its utter refusal to acknowledge
Plaintiffs' constitutional rights, despite a Supreme Court mandate on the subject. As it did during
desegregation, the State has determined to actively work against Plaintiffs in their struggle for
equality, enacting constitutional amendments targeted at limiting their participation in society
and ignoring controlling precedent from the Supreme Court. See Poindexter, 275 F. Supp. at

16
Michelle Millhollon, Louisiana House Rejects Repeal of Unenforceable Law, The Advocate, April 22,
2014, available at http://theadvocate.com/news/8916428-123/louisiana-house-rejects-repeal-of. Attached
hereto as Exhibit 2.
- 19 -
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840-41. Plaintiffs must look to the federal courts for recognition of their rights rather than wait
for "social consensus."
The developments in constitutional jurisprudence of the past sixty years expose the error
in Defendants' argument that social consensus must precede the recognition of Plaintiffs'
marriages. Like the noble jurists that have come before, this Court must fulfill its responsibility
"to protect nationally created constitutional rights." Jefferson Cnty., 372 F.2d at 873.
Constitutional rights may not be denied while the nation debates their validity. "If the rule were
otherwise, the great guarantee of the equal protection clause would be meaningless." Hall, 197
F. Supp. at 658.
D. The Fourteenth Amendment Does Not Contain a Domestic Relations
Exception.
Defendants cite Windsor for the proposition that Plaintiffs' claims must fail because the
States have "virtually exclusive authority" to regulate domestic relations law. Rec. Doc. 84-1 at
4-7. Defendants argue that Windsor's affirmation of state authority to regulate domestic relations
necessarily defeats Plaintiffs' due process and equal protection claims. Rec. Doc. 84-1 at 6.
Defendants' federalism argument conflates different issues. Plaintiffs do not dispute that
Louisiana has authority to regulate marriage; the issue is the manner in which that authority is
exercised. Louisiana is constrained to exercise its domestic-relations power in a manner that is
consistent with the equal protection and due process guarantees of the Fourteenth Amendment.
1. The State Must Exercise Its Domestic Relations Power In
Accordance with Equal Protection and Due Process.
Defendants assert that Windsor affirmed the states' authority over domestic relations law
and claim that Windsor "teaches that states are authorized to determine the shape of marriage"
within their borders. Rec. Doc. 84-1 at 19-20. The Constitution, however, as the "supreme law
of the land," limits all state authority. U.S. Const. Art. VI. Even in areas of nearly exclusive
- 20 -
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state control, "[a] primary responsibility of federal courts is to protect nationally created
constitutional rights." Jefferson Cnty., 372 F.2d at 873. In short, "[i]t is . . . not the business of
federal courts how a state [regulates domestic relations]: as long as the state and its agents do not
violate the Constitution." Bush, 308 F.2d at 500.
Thus, although federalism favors protecting state's rights to select policies suited to
citizens within its borders, "[s]tates are not the sole intended beneficiaries of federalism." Bond
v. United States, 131 S.Ct. 2355, 2364 (2011). Federalism "also protects the liberty of all
persons within a State by ensuring that laws enacted in excess of delegated governmental power
cannot direct or control their actions. By denying any one government complete jurisdiction
over all the concerns of public life, federalism protects the liberty of the individual from arbitrary
power." Id. at 2364. Accordingly, "federalism" does not save Louisiana's Anti-Recognition
Laws because those laws violate the Constitution. Each day that the laws remain in effect, these
validly married Plaintiffs are deprived of their Fourteenth Amendment rights.
2. Windsor Did Not Authorize States to Violate the Fourteenth
Amendment.
Defendants reason that because Windsor upheld New York's "proper exercise of its
sovereign authority," 133 S. Ct. at 2692, in deciding to validate same-sex marriage, Louisiana's
decision to forbid and nullify same-sex marriages must also be proper. Rec. Doc. 84-1 at 18-19.
This argument ignores the constitutional questions of equal protection and due process presented
in this case. It is the Constitution, not Windsor, that "establish[es] a one-way ratchet" allowing
states to legislate above the constitutional minimum, but not below. Id. New York lawfully
recognized and then permitted same-sex marriage; as Defendants note, this was constitutionally
authorized. Id. Louisiana banned same-sex marriage and effectively annulled the marriages of
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Plaintiffs and similarly situated same-sex couples celebrated in other states, violating their
constitutional rights.
Windsor did not create a family law exception compliance with the Fourteenth
Amendment. Indeed, the Court explained that "[s]tate laws defining and regulating marriage, of
course, must respect the constitutional rights of persons." Windsor, 133 S. Ct. at 2691. Nothing
in Windsor overruled the well-settled precedent that States must comply with equal protection
and due process when exercising their power to regulate marriage. E.g., Turner v. Safley, 482
U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving, 388 U.S. 1. Rather, in
Windsor the Court found that Congress, by enacting DOMA, had departed from its traditional
reliance on State definitions of marriage, and this departure resulted in "interference with the
equal dignity of same-sex marriages, a dignity conferred by the States in their sovereign power."
133 S. Ct. at 2693. DOMA's interference in state-sanctioned marriages deprived married same-
sex couples of their individual liberty in violation of the Fifth Amendment. See 133 S. Ct. at
2695. Nothing in Windsor suggests that States that do not permit same-sex marriage are
therefore excused from complying with the Equal Protection and Due Process Clauses.
As Plaintiffs explained in their opening memorandum, Louisiana has already decided that
it will recognize heterosexual marriages that would not be permitted if they were celebrated on
Louisiana soil. Rec. Doc. 86-1 at 4-5. If Louisiana is going to extend recognition to foreign
marriages, it must apply the same rules to all marriages, or, if Louisiana wishes to apply different
rules to different marriages, it must offer a reason for the differential treatment that satisfies
equal protection and due process scrutiny. Through the Anti-Recognition Laws, Louisiana has
chosen the latter path. The Fourteenth Amendment demands, and nothing in Windsor excuses,
- 22 -
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that Louisiana supply a constitutional justification for its discriminatory treatment of married
same-sex couples.
E. The Full Faith and Credit Clause Does Not Authorize the Anti-Recognition
Laws.
Defendants' argument that the Full Faith and Credit Clause, U.S. Const. Art. IV, 1,
authorizes the Anti-Recognition Laws is also unpersuasive. Defendants argue that "[b]asic FFC
principlesauthorize a state not to recognize marriages that violate its public policy." Rec. Doc.
84-1 at 8. That much is not disputed, but the public policy must pass constitutional muster. A
State's public policy cannot arbitrarily target a group for discrimination without a legitimate
reason. The issue in this case is whether Louisiana has a constitutional justification for its public
policy to recognize practically all heterosexual marriages, even if they would be invalid if
celebrated in Louisiana, but deny recognition to similar same-sex marriages. Louisiana has
come forward with no legitimate reason for its public policy.
Louisiana's exercise of any power under the Full Faith and Credit Clause is constrained
by the Fourteenth Amendment. If there were any conflict between the powers authorized by the
Full Faith and Credit Clause and the Fourteenth Amendment, the amendment controls. See
Schick v. United States, 195 U.S. 65, 68-69 (1904).
Defendants also argue that Plaintiffs' causes of action are foreclosed by Section 2 of the
Defense of Marriage Act, 28 U.S.C. 1738C. Rec. Doc. 84-1 at 10. But Defendants' reliance on
DOMA Section 2 is misplaced. Congress cannot authorize a State to violate the Fourteenth
Amendment. Saenz v. Roe, 526 U.S. 489, 507 (1999); Townsend v. Swank, 404 U.S. 282, 291
(1971); Graham v. Richardson, 403 U.S. 365, 382 (1971); Shapiro v. Thompson, 394 U.S. 618,
641 (1969). Secondarily, Defendants waived reliance on Section 2 as an affirmative defense
- 23 -
1158700v1
because they did not plead it in their answer, as required by Rule 8(c). Ingraham v. United
States, 808 F.2d 1075, 1078 (5th Cir. 1987).
If the Court were to disagree with these arguments, then Plaintiffs also challenge the
constitutionality of DOMA Section 2 and request an opportunity for separate briefing on that
issue, with an invitation extended to the United States to participate in accordance with Rule 5.1
and 28 U.S.C. 2403. DOMA Section 2 is unconstitutional for a number of reasons, including
but not limited to (1) that it infringes the liberty and due process interests of same-sex couples in
a similar manner to Section 3, and thus also violates the Fifth Amendment; (2) that it exceeds the
scope of congressional authority because Congress has no power to abrogate Full Faith and
Credit, no more than Congress can abrogate equal protection or due process; and (3) that
application of the Full Faith and Credit clause is limited to recognition and enforcement of sister-
state judgments,
17
and since marriages are not judgments Congress had no power to speak to
recognition of marriages.
In sum, Defendants cannot excuse their equal protection and due process violations by
citation to the Full Faith and Credit Clause.

17
See Adar v. Smith, 639 F. 3d 146, 152-53 (5th Cir. 2011) (en banc).
- 24 -
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III. CONCLUSION
For all these reasons, the Court should deny Defendants' motion for partial summary
judgment and dismissal, and grant Plaintiffs' cross-motion.
/s/ J. Dalton Courson
J. Dalton Courson, 28542, T.A.
dcourson@stonepigman.com
John M. Landis, 7958
jlandis@stonepigman.com
Lesli D. Harris, 28070
lharris@stonepigman.com
Brooke C. Tigchelaar, 32029
btigchelaar@stonepigman.com
Maurine M. Wall, 34139
mwall@stonepigman.com
STONE PIGMAN WALTHER
WITTMANN L.L.C.
546 Carondelet Street
Telephone: (504) 581-3200
Attorneys for Forum for Equality Louisiana,
Inc., Jacqueline M. Brettner, M. Lauren
Brettner, Nicholas J. Van Sickels, Andrew S.
Bond, Henry Lambert, R. Carey Bond, L.
Havard Scott, III, and Sergio March Prieto
s/ Richard G. Perque
Richard G. Perque, 30669
LESLIE A. BONIN, LLC &
RICHARD G. PERQUE, LLC
700 Camp Street
Phone: 504-524-3306
Fax: 504-529-4179
Attorney for Jonathan P. Robicheaux, Derek
Penton, Nadine Blanchard, and Courtney
Blanchard
I hereby certify that on this 19th day of May, 2014, the foregoing Memorandum
in Opposition to Defendants' Motion for Partial Summary Judgment and Dismissal has been
served upon all counsel of record by the Court's CM/ECF system.
TABLE OF CONTENTS
Page
1158700v1
I. SUMMARY OF ARGUMENT...........................................................................................1
II. LAW AND ARGUMENT...................................................................................................3
A. The Court Should Apply Heightened Scrutiny to Defendants' Equal
Protection Violation. ................................................................................................3
B. The Court Should Hold that Plaintiffs' Right to Marry Is a Fundamental
Right Subject to Strict Scrutiny. ..............................................................................6
C. Defendants Have Not Offered a Rational Justification for the Anti-
Recognition Laws. ...................................................................................................7
1. "Natural Procreation" Is Not a Sufficient Basis for the Anti-
Recognition Laws. .......................................................................................8
a. The Anti-Recognition Laws Do Not Affect Heterosexual
Persons or Their Marriages. .............................................................8
b. Procreation Is Not a Prerequisite for Different-Sex
Marriage and Should Not Be Prerequisite for Same-Sex
Marriage. ..........................................................................................9
c. The State's Procreation Argument Disregards Supreme
Court Precedent..............................................................................12
d. The True Purpose of the Anti-Recognition Laws Are Not
Procreation, But Rather Discrimination.........................................14
2. Plaintiffs Need Not Wait for Social Consensus to Vindicate Their
Constitutional Rights. ................................................................................15
D. The Fourteenth Amendment Does Not Contain a Domestic Relations
Exception. ..............................................................................................................19
1. The State Must Exercise Its Domestic Relations Power In
Accordance with Equal Protection and Due Process. ................................19
2. Windsor Did Not Authorize States to Violate the Fourteenth
Amendment................................................................................................20
E. The Full Faith and Credit Clause Does Not Authorize the Anti-
Recognition Laws. .................................................................................................22
III. CONCLUSION..................................................................................................................24
1158888v1
Page(s)
Cases
Adar v. Smith, 639 F. 3d 146 (5th Cir. 2011).................................................................................23
Angel v. Fairfield, 793 F.2d 737 (5th Cir. 1986) .........................................................................6, 7
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011).........................................................................5
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014),
appeal docketed 14-5003 (10th Cir.) ...................................................................4, 9, 10, 11
Bond v. United States, 131 S.Ct. 2355 (2011) ...............................................................................20
Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir. 1967) .........................................16
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)...................................................................9
Bowers v. Hardwick, 478 U.S. 186 (1986) ..................................................................................5, 6
Brown v. Board of Education, 347 U.S. 483 (1954)......................................................................15
Brown v. Board of Education (Brown II), 349 U.S. 294 (1955)..............................................15, 16
Bush v. Orleans Parish School Board, 308 F.2d 491 (5th Cir. 1962) ...............................16, 17, 20
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).......................................18
City of Cleburne, Texas v. Cleburne Living Center., 473 U.S. 432 (1985) .....................................7
Cooper v. Aaron, 358 U.S. 1 (1958) ........................................................................................15, 16
De Leon v. Perry, No. 13-00982, 2014 U.S. Dist. LEXIS 26236 (W.D. Tx. Feb.
26, 2014) ..............................................................................................................................9
Deboer v. Snyder, No. 12-10285, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich.
March 21, 2014).................................................................................................................11
Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) .......................................................................7
Gay Student Services v. Texas A&M University, 737 F.2d 1317 (5th Cir. 1984)..........................18
Golinski v. United States Office of Personnel Management, 824 F. Supp. 2d 968
(N.D. Cal. 2012)...................................................................................................................5
Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) ...................................9
1158888v1
Graham v. Richardson, 403 U.S. 365 (1971) ................................................................................22
Griego v. Oliver, 316 P.3d 865 (N.M. 2013)...................................................................................5
Griswold v. Connecticut, 381 U.S. 479 (1965)................................................................................6
Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (E.D. La. 1961).....................16, 17, 19
Heller v. Doe, 509 U.S. 312 (1993) .................................................................................................4
Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987) ...........................................................23
James v. Hertzog, 415 F. App'x 530 (5th Cir. 2011) .......................................................................5
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ..........................................................................5
Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) .....................................5
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)..................................................6, 10, 13
Latta v. Otter, No. 13-00482, 2014 U.S. Dist. LEXIS 66417 (D. Idaho May 13,
2014) ..........................................................................................................................3, 6, 12
Lawrence v. Texas, 539 U.S. 558 (2003).....................................................................5, 6, 7, 13, 18
Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971).....................................16
Loving v Virginia, 388 U.S. 1 (1967).....................................................................................3, 6, 21
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ..............................................................................................6
In re Marriage Cases, 183 P.3d 384 (Cal. 2008).............................................................................5
Massachusetts v. United States Department of Health and Human Services, 682
F.3d 1 (1st Cir. 2012).......................................................................................................7, 8
Meyer v. Nebraska, 262 U.S. 390 (1923) ........................................................................................6
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) ..............................................12, 14
Pederson v. Office of Personnel Management, 881 F. Supp. 2d 294 (D. Conn.
2012) ....................................................................................................................................5
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).........................................5, 8, 12
Poindexter v. Louisiana Financial Assistance Commission, 275 F. Supp 833 (E.D.
La. 1967) ......................................................................................................................16, 18
Romer v. Evans, 517 U.S. 620 (1996)..............................................................................................5
1158888v1
Saenz v. Roe, 526 U.S. 489 (1999) ................................................................................................22
Schick v. United States, 195 U.S. 65 (1904) ..................................................................................22
Secsys, LLC v. Vigil, 666 F.3d 678 (10th Cir. 2012) .......................................................................4
Shapiro v. Thompson, 394 U.S. 618 (1969)...................................................................................22
Shelley v. Kraemer, 334 U.S. 1 (1948) ..........................................................................................17
Singleton v. Jackson Municipal Separate School District, 348 F.2d 729 (5th Cir.
1965) ..................................................................................................................................16
Singleton v. Jackson Municipal Separate School District, 355 F.2d 865 (5th Cir.
1966) ..................................................................................................................................16
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).....................................................12
SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) ....................3, 5
Townsend v. Swank, 404 U.S. 282 (1971) .....................................................................................22
Turner v. Safley, 482 U.S. 78 (1987) .................................................................................12, 13, 21
United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir.
1966) ................................................................................................................16, 17, 19, 20
United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963)........................................................4
United States v. Then, 56 F.3d 464 (2d Cir. 1995) ..........................................................................8
Windsor v. United States, 133 S. Ct. 2675 (2013) ................................................................. passim
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff'd 133 S. Ct. 2675
(2013) ..................................................................................................................................5
Zablocki v. Redhail, 434 U.S. 374 (1978)......................................................................................21
Statutes
1 U.S.C. 7 (Defense of Marriage Act Section 3) ............................................................3, 4, 7, 21
28 U.S.C. 1738C (Defense of Marriage Act Section 2)........................................................22, 23
28 U.S.C. 2403............................................................................................................................23
Louisiana's Code Noir......................................................................................................................4
1158888v1
Louisiana Children's Code article 1221.........................................................................................10
Louisiana Civil Code article 98 .....................................................................................................13
Louisiana Civil Code article 195 ...................................................................................................13
Louisiana Civil Code article 3520(B) .................................................................................... passim
Louisiana Revised Statutes 14:41...............................................................................................13
Constitutional Provisions
U.S. Const. Art. IV, 1............................................................................................................22, 23
U.S. Const. Art. VI.........................................................................................................................19
U.S. Const. amend. I ......................................................................................................................18
U.S. Const. amend. V...............................................................................................................21, 23
U.S. Const. amend. XIV, 1 ................................................................................................. passim
La. Const. Art XII, 15 ......................................................................................................... passim
Other Authorities
Emily Lane, Louisiana House Kills Bill Adding LGBT People to Housing Non-
discrimination Law, NOLA.com, April 28, 2014..............................................................17
Michelle Millhollon, Louisiana House Rejects Repeal of Unenforceable Law, The
Advocate, April 22, 2014...................................................................................................18
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 2
Exhibit 2
1158855v1
Plaintiffs
v.
JAMES D. CALDWELL, et, al.,
Defendants
*
*
*
*
*
*
*
*
*
*
*
*
CIVIL ACTION
NO. 13-5090 C/W 14-97 &14-327
SECTION F(5)
REF: ALL CASES
*************************************** *
PLAINTIFFS' RESPONSE TO DEFENDANTS' STATEMENT OF
UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs respectfully submit this response to the Statement of Undisputed
Material Facts filed by Defendants Thomas Barfield, Secretary of the Louisiana Department of
Revenue, Kathy Kliebert, Secretary of Louisiana Department of Health and Hospitals, and Devin
George, Louisiana State Registrar. Rec. Doc. 84-3.
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted. However, Plaintiffs note that while Defendants' use of the word
"purported" in an accurate recitation of the Louisiana Civil Code articles, there is nothing
"purported" about their marriages. Plaintiffs legally wed under the laws of the jurisdictions
where they obtained licenses and celebrated their nuptials. Louisiana's characterization of their
marriages as "purported" marriages exemplifies its efforts to demean and humiliate same-sex
couples.
- 2 -
1158855v1
6. Admitted. Plaintiffs incorporate their response to Defendants' Statement of Fact
No. 5.
7. Denied as written. Louisiana also permits single persons, over the age of 18, to
adopt. La. Child. Code art. 1221 ("a single person, eighteen years or older, or a married couple
jointly may petition to privately adopt a child").
8. Denied.
9. Denied as written. Plaintiffs have no independent knowledge of Tim Barfield's
understanding of Louisiana law.
10. Denied as written. Plaintiffs have no independent knowledge of Kathy Kliebert's
11. Denied as written. Plaintiffs have no independent knowledge of Devin Georges's
12. Denied as written. California's ban on same-sex marriage was overturned by
federal judicial decision. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010),
aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom.
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Further, since April 17, 2014, a federal district
court in Idaho (Latta v. C.L. Butch Otter, No. 1:13-00482 (D. Idaho May 13, 2014)) and a state
circuit court in Arkansas (Wright v. Arkansas, No. 60CV-13-2662 (Pulaski Cnty. Cir. Ct., Ark.
May 9, 2014)) have overturned those states' bans on same-sex marriage. Both decisions are on
appeal. Today, May 19, 2014, the United States District Court for the District of Oregon struck
down that state's same-sex marriage ban. No. 6:13-cv-01834-MC (D. Or. May 19, 2014).
- 3 -
1158855v1
13. Denied as written. See Response to 12.
Dated: May 19, 2014 Respectfully submitted,
WITTMANN L.L.C.
Telephone: (504) 581-3200
700 Camp Street
Phone: 504-524-3306
Fax: 504-529-4179
Blanchard
- 4 -
1158855v1
C E R T I F I C A T E
I hereby certify that a copy of the preceding Response to Defendants' Statement of
Uncontested Material Facts has been served upon all counsel of record by electronic notice via
the Courts CM/ECF system, this 19th day of May, 2014.



Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION
FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION
Plaintiffs say the United States Constitution requires Louisiana to recognize
same-sex marriage. But, just last year, the Supreme Court said each states citizens
may decide that matter for themselves. United States v. Windsor, 133 S. Ct. 2675
(2013). Louisianas citizens did so in 2004. The idea that the Constitution overrides
their decision is demeaning to the democratic process, Schuette v. BAMN, 134 S.
Ct. 1623, 1637 (2014) (op. of Kennedy, J.), and should be rejected.
Based on the parties submissions, there are no genuine disputes as to any
material facts.
1
The parties agree that Louisiana law prevents defendants from
recognizing plaintiffs same-sex marriages. LA. CONST. art. XII, 15; LA. CIV. CODE

1
Defendants do not contest plaintiffs standing. See Windsor, 133 S. Ct. at 2685 (plaintiff
suffered a redressable injury when made to pay taxes under allegedly invalid law); Adar
v. Smith, 639 F.3d 146, 150 (5th Cir. 2011) (en banc) (Appellees had standing when denied
a revised birth certificate containing [their] names as parents). Plaintiffs full faith and
credit claim, however, should be dismissed for failure to state a claim. Def. MSJ 10-11.

2
art. 3520(B).
2
The Court can decide the constitutional recognition issues as a matter
of law. Therefore, defendants ask the Court to: (1) deny plaintiffs partial motion for
summary judgment (Doc. 86), and (2) grant defendants partial motion for summary
judgment and motion to dismiss (Doc. 84).
ARGUMENT
I. PLAINTIFFS WOULD NULLIFY LOUISIANAS AUTHORITY TO DEFINE MARRIAGE.
Plaintiffs equal protection and due process claims fail on their own terms. See II,
III, infra. They also fail because they would nullify Louisianas historic and
essential authority to define the marital relation. Windsor, 133 S. Ct. at 2692. That
authority was of central relevance, id., to the Supreme Courts decision last year
invalidating the federal marriage definition in DOMA section 3. The Court found
section 3 violated the Fifth Amendment rights of same-sex couples lawfully married
under New York law because of section 3s unusual deviation from the usual
tradition of recognizing and accepting state definitions of marriage. Id. at 2693.
New Yorks decision to recognize and then to allow same-sex marriages was,
Windsor underscored, without doubt a proper exercise of its sovereign authority
within our federal system. Id. at 2692. Windsor thus affirms that states act within

2
See Pl. MSJ (Doc. 86-1) 4; Pl. Stmt. (Doc. 86-4) 2; Def. MSJ (Doc. 84-1) 1-2; Def. Stmt.
(Doc. 84-3) 1-3. Defendants disagree, however, with some of plaintiffs characterizations of
Louisiana law. For instance, it is incorrect to say that Louisiana Revenue Information
Bulletin No. 13-024 will not follow IRS Revenue Ruling 2013-17, Doc. 86-4 9, since the
IRS ruling applies only to the federal government. Doc. 84-4 (Barfield aff.) 10, 12. It is
also incorrect to say that the Louisiana bulletin and tax forms are contrary to La. R.S.
47:294, Doc. 86-4 12, since the statute must be construed in light of the Louisiana
Constitution. Doc. 84-4 (Barfield aff.) 7-12. But these are legal, not factual
disagreements, and they do not prevent the Court from deciding the constitutional issues as
a matter of law.

3
their authority when they democratically decide whether to recognize same-sex
marriage. See, e.g., id. at 2692-93 (observing [t]he dynamics of state government in
the federal system are to allow the formation of consensus respecting a far-
reaching matter like same-sex marriage). In contravention of Windsor, plaintiffs
would constitutionalize the issue and nullify Louisianas authority to decide it.
Plaintiffs claims should fail for that reason alone. See Def. MSJ (Doc. 84-1) 3-7.
3

Last month, the Supreme Court reinforced Windsors respect for state authority
in Schuette, which rejected an equal protection challenge to a Michigan
constitutional amendment forbidding affirmative action in public universities. The
Court found that Michigan voters [had] exercised their privilege to enact [the
amendment] as a basic exercise of their democratic power. 134 S. Ct. at 1636 (op. of
Kennedy, J.). Recognizing the amendment reflected the national dialogue
regarding the wisdom and practicality of [affirmative action], Schuette held that
courts may not disempower the voters from choosing which path to follow. Id. at
1631, 1635. To deem affirmative action too sensitive, complex, or delicate for
voters would be an unprecedented restriction on the exercise of a fundamental
right held not just by one person but by all in common. Id. at 1637. It is
demeaning to the democratic process, the Court said, to presume that the voters
are not capable of deciding an issue of this sensitivity on decent and rational

3
Their claims also fail in light of the Faith and Credit Clause, which does not require a
state to recognize out-of-state marriages. Def. MSJ 7-10; Baker v. Gen. Motors Corp., 522
U.S. 222, 232-33 (1998) (full faith and credit does not compel a state to substitute the
statutes of other states for its own statutes dealing with a subject matter concerning which
it is competent to legislate) (citation omitted). Congress confirmed that principle by
enacting DOMA section 2. Def. MSJ 9-10 (discussing 28 U.S.C. 1738C).

4
grounds, and even if debates like these may shade into rancor that does not
justify removing [them] from the voters reach. Id. at 1637, 1638.
Schuette speaks directly to the issue of state authority here. As with affirmative
action, there is an ongoing national dialogue regarding [same-sex marriage],
and courts may not disempower the voters from choosing which path to follow. Id.
at 1631, 1635. As with affirmative action, it would be demeaning to the democratic
process to presume voters are not capable of deciding an issue of this sensitivity
on decent and rational grounds. Id. at 1637. Indeed, it is the responsibility of
votersnot the courtsto decide the issue, because [f]reedom embraces the right,
indeed the duty, to engage in a rational, civic discourse in order to determine how
best to form a consensus to shape the destiny of the Nation and its people. Id; cf.
Windsor, 133 S. Ct. at 2692 (In acting first to recognize and then to allow same sex
marriages, New York was responding to the initiative of those who [sought] a voice
in shaping the destiny of their own times.) (quoting Bond v. United States, 131 S.
Ct. 2355, 2359 (2011)). Schuette thus reinforces Windsors point that a states
decision to recognize same-sex marriage, or not to, is without doubt a proper
exercise of its sovereign authority within our federal system. 133 S. Ct. at 2692.
Louisianas voters spoke to the issue in 2004, as New Yorks voters did in 2011.
With respect to the validity of that sovereign decision, Windsor and Schuette speak
in unison: There is no authority in the Constitution of the United States or in [the
Supreme] Courts precedents for the Judiciary to set aside [the] laws that commit
this policy determination to the voters. Schuette, 134 S. Ct. at 1638.

5
While noting Windsors concern for the traditional State prerogative to define
marriage within its borders, plaintiffs assert that, at bottom, Windsor was an
equal-protection and due-process case, not a federalism case. Pl. MSJ 24. This
radically oversimplifies Windsor, in which federalism and individual rights worked
hand-in-glove. Windsor ruled DOMA section 3 was a discrimination[ ] of an
unusual character precisely because it was an unusual deviation from the usual
tradition of recognizing and accepting state definitions of marriage. 133 S. Ct. at
2693. To be sure, the Court did not ground its decision solely in federalism, because
it recognized a limited federal authority over marriage. See id. at 2690 (noting
discrete legislative examples that establish the constitutionality of limited federal
laws that regulate the meaning of marriage for federal purposes). But that does not
change the fact that Windsors holding turned on section 3s broad usurpation of
the States power in defining the marital relation. Id. at 2692. That power, which
the Court spent nine paragraphs discussing, was not unnecessary to the decision.
Pl MSJ 24. To the contrary, the Court said that, [i]n order to assess the validity of
[section 3] it is necessary to discuss the extent of the state power and authority
over marriage as a matter of history and tradition, 133 S. Ct. at 2691, and
concluded that [t]he States power in defining the marital relation is of central
relevance in this case, id. at 2692 (emphases added).
Unable to erase Windsors obvious grounding in federalism, plaintiffs instead
raise Loving v. Virginia, 388 U.S. 1 (1967), arguing that Virginia advanced a
federalism argument in that case too. Pl. MSJ (Doc. 86-1) 24. That is a smoke-

6
screen. In Loving, Virginia vainly attempted to use federalism to justify invidious
racial discrimination that violated the clear and central purpose of the Fourteenth
Amendment and triggered strict scrutiny. Loving, 388 U.S. at 11, 10. This case, by
contrast, involves a novel right which no state had even recognized ten years ago
and which 34 states do not recognize today, and a classification which triggers only
rational basis review. See II.A, infra. The fact that the Loving defendants invoked
federalism to justify white supremacy laws has nothing to do with Louisianas
federalism argument in this case. One might as well say that the fact that the
plaintiffs in Dred Scott v. Sandford invoked due process to justify slavery should
count against plaintiffs due process arguments here.
4
That argument would be just
as baseless as plaintiffs Loving argument.
II. LOUISIANAS MARRIAGE LAWS SATISFY THE EQUAL PROTECTION CLAUSE.
A. Sexual orientation does not trigger heightened scrutiny.
Plaintiffs spend much of their argument urging the Court to apply heightened
scrutiny. Pl. MSJ 10-16. They rely on Windsor and, alternatively, on the traditional
suspect-class factors. But binding precedent subjects Louisianas marriage laws
only to rational basis review, which they satisfy. See Def. MSJ 12-20.
1. Windsor reaffirms binding precedent that applies rational
basis review to sexual-orientation classifications.
As plaintiffs concede, [t]he Fifth Circuit has applied the lowest level of equal

4
See Dred Scott v. Sandford, 60 U.S. 393, 450 (1856) (reasoning that an act of Congress
which deprives a citizen of the United States of his liberty or property, merely because he
came himself or brought his property into a particular Territory of the United States,
could hardly be dignified with the name of due process of law); cf. id. at 626 (Curtis, J.,
dissenting) (Nor, in my judgment, will the position, that a prohibition to bring slaves into a
Territory deprives any one of his property without due process of law, bear examination.).

7
protection scrutiny, rational basis, to sexual-orientation discrimination. Pl. MSJ 11
(citing Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)); see also Def. MSJ 11
n.7 ([n]ine other circuits agree). Johnson remains good law: it followed the
Supreme Courts decision in Romer v. Evans, which applied rational basis review to
a sexual-orientation classification in the Colorado Constitution. See Romer, 517 U.S.
620, 633 (1996) (asking whether Amendment 2 bear[s] a rational relationship to an
independent and legitimate legislative end). Windsor expressly reaffirmed Romer.
See Windsor, 133 S. Ct. at 2692 (relying on and quoting Romer, 517 U.S. at 633).
Unless and until the Supreme Court demands heightened scrutiny for sexual
orientation, lower courts must apply rational basis under Romer. See, e.g.,
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (the
Court of Appeals should follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own decisions).
Contrary to plaintiffs argument, Pl. MSJ 11, Windsor did not mandate
heightened scrutiny when it said that [d]iscriminations of an unusual character
especially suggest careful consideration to determine whether they are obnoxious to
the constitutional provision. 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633).
That language from Windsor could not possibly require heightened scrutiny: it is a
quotation from Romer, which applied rational basis.
5
Moreover, plaintiffs
misunderstand Windsors point. Section 3 of DOMA was unusual, not because it

5
Furthermore, Romer drew this careful consideration language from a case invalidating
a state tax under rational basis. See Louisville Gas & Elec. v. Coleman, 277 U.S. 32, 37-38
(1928) (tax must bear[ ] a reasonable and just relation to the act in respect to which the
classification is proposed) (quotes omitted).

8
classified by sexual orientation, but because it depart[ed] from [the] history and
tradition of [federal] reliance on state law to define marriage. Windsor, 133 S. Ct.
at 2692. Louisianas marriage laws are the opposite of section 3: far from a novel
intrusion into domestic relations law, they instead fall squarely within Louisianas
historic and essential authority to define the marital relation. Id.
The Court should not follow the Ninth Circuits SmithKline decision, which
misinterpreted Windsor. See Pl. MSJ 11-13 (relying on SmithKline Beecham Corp.
v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013)). Windsor found DOMA section 3 was
actually motivated by an illegitimate purpose, see 133 S. Ct. at 2696, contravening
a basic requirement of rational basis review. See, e.g., Mahone v. Addicks Utility
Dist., 836 F.2d 921, 933 (5th Cir. 1988) (classification passes rational basis if
rationally related to a legitimate state interest) (citing City of Cleburne v. Cleburne
Living Ctr., Inc., 472 U.S. 432, 439-40 (1985)). This is the same rational basis
review applied in Romer. See 517 U.S. at 632 (explaining, [i]n the ordinary case, a
law will be sustained if it can be said to advance a legitimate government interest).
Nowhere does Windsor say it overruled Romer and established a new heightened
scrutiny standard for sexual-orientation, and the Ninth Circuit was mistaken to
read such an intent into Windsor. (Moreover, the Ninth Circuits decision is
currently subject to a sua sponte en banc call, see Def. MSJ 11 n.7).
Finally, common-sense says Windsor did not adopt heightened scrutiny.
Heightened scrutiny involves a distinct formula. See, e.g., United States v. Virginia,
518 U.S. 515, 532-33 (1996) (under heightened scrutiny, state bears demanding

9
burden of showing an exceedingly persuasive justification, namely that the
classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of
those objectives) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982)). The Windsor opinion contains no hint of that formula.
2. Louisianas marriage laws are not unusual but instead follow
longstanding conflicts-of-law rules.
Plaintiffs alternative argument for heightened scrutiny under Windsor contends
that Louisianas non-recognition of same-sex marriage is an unusual deviation from
its historic practice. They claim that, [j]ust as section 3 of DOMA departed from
federal reliance on state marriage law, so too do Louisianas marriage laws
depart[ ] from Louisiana history and tradition of upholding the validity of out-of-
state marriages. Pl. MSJ 11. Plaintiffs misunderstand Louisiana law.
The rule in Louisiana has always been that it will recognize out-of-state
marriages as a matter of comity, but this spirit of comity does not require
[Louisiana] to recognize a marriage which is contrary to its own public policy.
Brinson v. Brinson, 96 So.2d 653, 659 (La. 1957) (refusing to recognize fraudulent
common-law marriage from Mississippi); see also, e.g., Bloom v. Willis, 60 So.2d 415,
417 (La. 1952) (recognizing another states non-ceremonial marriage out of comity)
(citing Succession of Marinoni, 148 So. 888 (La. 1933)). Plaintiffs own cases
recognize this long-standing rule,
6
which was codified in Civil Code article 3520.

6
See Pl. MSJ 4-5; see, e.g., Ghassemi v. Ghassemi, 2007-1927, p. 11 n.15 (La. App. 1 Cir.
10/15/08), 998 So.2d 731, 739 n.15 (traditional rule required court to determine whether
recognizing [the foreign marriage] would violate the public policy of [Louisiana]); United

10
See, e.g., Ghassemi, 998 So.2d at 739 n.15 (article 3520 essentially codified the
previous comity analysis); cf. Restatement (2d) Conflicts of Laws 284 cmt. c
(noting rule that [a] state will not give a particular incident to a foreign marriage
when to do so would be contrary to its strong local policy).
Consequently, there is nothing unusual about Louisianas decision to deny
recognition to same-sex marriages on strong public policy grounds. That decision
falls squarely within Louisianas longstanding conflicts-of-law approach. Nor is it
unusual that Louisiana addressed the issue recently, and not before: the issue arose
only in the last two decades. See, e.g., Baker v. State, 744 A.2d 864, 868 (Vt. 1999)
(Vermont Constitution requires state to extend to same-sex couples the common
benefits and protections that flow from marriage under Vermont law).
7

3. Binding precedent forecloses plaintiffs suspect-class argument.
Alternatively, plaintiffs claim that sexual orientation qualifies as a suspect or

States ex rel. Modianos v. Tuttle, 12 F.2d 927, 928 (E.D. La. 1925) (noting well-recognized
exception to validity of foreign marriages where the law-making authority has declared
[the marriage] shall not be allowed any validity as a matter of general policy); Succession
of Caballero v. Executor, 24 La. Ann. 573, 575 (1872) (noting well settled rule denying
foreign marriages recognition for reasons of public policy). A few Louisiana appellate
courts misstate the rule as one of full faith and credit, see, e.g., Fritsche v. Vermilion
Parish Hosp. Serv. Dist. No. 2, 2004-1192, p. 3 (La. App. 3 Cir. 2/2/05), 893 So.2d 935, 937-
38), but the vast weight of authority correctly identifies the rule purely as one of comity.
See, e.g., Chivers v. Couch Motor Lines, Inc., 159 So.2d 544, 549 (La. App. 3 Cir. 1964) (Tate,
J.) (relying on traditional rule in Brinson and Marinoni, supra). In any event, article 3520
plainly codifies the rule as one of comity. See LA. CIV. CODE art. 3520 cmt. b (presumptive
validity of foreign marriage may be defeated by showing applicable law would invalidate
the marriage for reasons of a strong public policy).
7
See also, e.g., In re Opinions of the Justices, 802 N.E.2d 565, 569-72 (Mass. 2004)
(allowing civil unions but not marriage for same-sex couples violates the equal protection
and due process requirements of Massachusetts Constitution); and see generally Forum for
Equality PAC v. McKeithen, 2004-2477, pp. 26-28 (La. 1/19/05); 893 So.2d 715, 733-34
(discussing motivation for enacting Louisiana Constitution article XII, 15).

11
quasi-suspect class under traditional suspect-class factors. Pl. MSJ 13-15. This
argument, however, is foreclosed by binding precedentJohnson and Romerthat
sexual-orientation classifications merit rational basis review only. As explained
above, Windsor reaffirmed this precedent. See II.A.1, supra.
Indeed, in Windsor the Supreme Court had ample opportunity to adopt this
suspect-class rationale, and yet did not. For instance, the Second Circuit opinion
under review elaborately analyzed the suspect-class factors and applied heightened
scrutiny. Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012). In the
Supreme Court, the Solicitor General spent nineteen pages making the same
argument. Merits Br. for United States at 16-36, United States v. Windsor, 133 S.
Ct. 2675 (2013) (No. 12-307). Finally, while the case was in the lower courts, the
Attorney General had announced the Presidents view that classifications based on
sexual orientation should be subject to a heightened standard of scrutiny, leading
the Justice Department to stop defending DOMA. Windsor, 133 S. Ct. at 2683
(quoting Attorney General letter). Despite all this, the Supreme Court did not
analyze the suspect-class factors and adopt heightened scrutiny. Surely, if the Court
had intended to do soand in the process overrule Romer and reject nine contrary
circuit decisions applying rational basis reviewit would have said so.
B. Louisianas marriage laws do not discriminate based on sex.
Alternatively, plaintiffs claim Louisianas marriage laws trigger heightened
scrutiny because they discriminate based on sex. They argue Louisiana does not
recognize their marriages solely [b]ecause each [p]laintiff is married to a person of
the same sex, rather than a person of the opposite sex, Pl. MSJ 15, constituting

12
sex-based discrimination under equal protection. Plaintiffs are mistaken.
Louisianas marriage laws do not engage in sex discrimination because they do
not advantage one sex over the other. See, e.g., Personnel Admin. of Mass. v. Feeney,
442 U.S. 226, 273 (1979) (sex discrimination occurs when laws are overtly or
covertly designed to prefer males over females); United States v. Virginia, 518 U.S.
at 532 (the Court has carefully inspected official action that closes a door or denies
opportunity to women (or to men)). With respect to marriage, Louisiana treats men
and women exactly the same: it does not draw any distinctions between same-sex
male couples and same-sex female couples, does not place any disproportionate
burdens on men and women, and does not draw upon stereotypes applicable only to
male or female couples. Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252,
1286 (N.D. Okla. 2014). It would be a different matter if Louisiana recognized out-
of-state marriages between two men but not two women, or allowed married lesbian
couples to adopt but not married gay couples. See, e.g., Hernandez v. Robles, 855
N.E.2d 1, 10 (N.Y. 2006) (New Yorks man-woman definition does not put men and
women in different classes, and give one class a benefit not given to the other).
That would be sex discrimination, but that is not what we have here.
Case law shows what actual sex discrimination looks like. Laws discriminate by
sex when they (1) require that males must be preferred to females as estate
administrators (Reed v. Reed, 404 U.S. 71, 73 (1971)); (2) make the husband head
and master of property owned in community with his wife (Kirchberg v. Feenstra,
450 U.S. 455, 462 (1981)); (3) require parents to support boys until 21, but girls only

13
until 18 (Stanton v. Stanton, 421 U.S. 7, 9-10 (1975)); (5) bar sale of 3.2% beer to
males under 21, but to females only under 18 (Craig v. Boren, 429 U.S. 190, 191-92
(1976)); (6) allow male service-members to claim wives as dependents without
showing actual financial dependence, but require female service-members to
provide proof to claim husbands as dependents (Frontiero v. Richardson, 411 U.S.
677, 678 (1973)); (7) exclude males from the sole state-supported nursing school
(Miss. Univ. for Women v. Hogan, 458 U.S. at 719); (8) exclude women from an elite
military training academy (and provided women with an inferior academy) (United
States v. Virginia, 518 U.S. at 547). In light of these instances of real sex
discrimination, [c]ommon sense dictates that Louisianas man-woman definition of
marriage has nothing to do with gender-based prejudice or stereotypes, and
cannot be subject to heightened scrutiny on that basis. Bishop, 962 F.Supp.2d at
1286; see also, e.g., Sevcik v. Sandoval, 911 F.Supp.2d 996, 1005 (D. Nev. 2012)
(man-woman marriage laws are not directed toward persons of any particular
gender, nor do they affect people of any particular gender disproportionately such
that a gender-based animus can reasonably be perceived).
Plaintiffs theory is not helped by the argument that the laws in Loving v.
Virginia, 388 U.S. 1, discriminated equally against blacks and whites and yet
were treated as race discrimination. See, e.g., Sevcik, 911 F.Supp.2d at 1004-05
(considering and rejecting this argument). There was nothing equal about the
anti-miscegenation laws Loving struck down. Those laws, which arose as an
incident to slavery, 388 U.S. at 6, imposed a sham equality that was in

14
substance anti-black legislation. Hernandez, 855 N.E.2d at 11. They were
measures designed to maintain White Supremacy. Loving, 388 U.S. at 11; see also
Sevcik, 911 F.Supp.2d at 1005 (In Loving, the elements of the disability were
different as between Caucasians and non-Caucasians, whereas here, the burden on
men and women is the same.). Loving thus treated anti-miscegenation laws as
what they were: invidious racial discrimination. 388 U.S. at 11; see also Vill. of
Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 265 (1977)
(Proof of racially discriminatory intent or purpose is required to show a violation of
the Equal Protection Clause.). But Louisianas marriage laws are wholly different.
There is no indication that they have the purpose or effect of disadvantaging males
or females, and therefore under settled law they cannot be considered sex
discrimination under equal protection.
If Louisianas marriage laws must be characterized as classifying for purposes
of this case, then they classify by sexual preference. See, e.g., Bishop, 962 F.Supp.2d
at 1287 ([i]nstead of gender-based discrimination sexual orientation provides the
best descriptor for the class-based distinction being drawn by a man-woman
definition of marriage); Sevick, 911 F.Supp.2d at 1005 (concluding that the level of
scrutiny applicable to sexual-orientation-based distinctions applies).
8
This means
that Louisianas laws do not trigger the heightened scrutiny reserved for sex-based
classifications but are instead subject to rational basis review. See II.A.1, supra.

8
The most recent district court decisionwhile mistaken on many counts, see infra
correctly concludes that the man-woman marriage definition does not prefer one gender
over the other and therefore does not engage in sex discrimination. See Latta v. Otter, __
F.Supp.2d __, 2014 WL 1909999, at *15 (D. Idaho May 13, 2014).

15
C. Louisianas marriage laws satisfy rational basis review.
To prevail under rational basis, plaintiffs must show that Louisianas decision to
retain the man-woman definition of marriage in its Constitution is so unrelated to
the achievement of any combination of legitimate purposes that [the Court] can only
conclude that [Louisianas] actions were irrational. Doe v. Jindal, 851 F.Supp.2d
995, 1005-06 (E.D. La. 2012) (quotes omitted) (first brackets added); see also Def.
MSJ 11-12 (discussing rational basis review). Plaintiffs cannot do so.
First, Louisiana rationally defines civil marriage as a man-woman union
because one of its principal purposes is to link children to an intact family formed
by their biological parents. See Def. MSJ 12-17; see also, e.g., Hernandez, 855
N.E.2d at 21 (Graffeo, J., concurring) ([A]n orderly society requires some
mechanism for coping with the fact that sexual intercourse commonly results in
pregnancy and childbirth. The institution of marriage is that mechanism.). That
purpose is amply displayed in Louisiana family law by a web of legal presumptions
linking marriage, biological parentage, and child protection. See Def. MSJ 13-14;
Wilkinson v. Wilkinson, 323 So.2d 120, 124 (La. 1975) (the public policy of
Louisiana that every effort must be made to uphold the validity of marriages is
closely intertwined with the presumption of legitimacy). Louisianas marriage laws
are structured around the biological reality that only opposite-sex couples naturally
procreate and that most children are born from the union of opposite-sex couples.
See, e.g., Hernandez, 855 N.E.2d at 7 (because it remains true that the vast
majority of children are born as a result of a sexual relationship between a man and
a woman, a legislature could find that an important function of marriage is to

16
create stability and permanence in the relationships that cause children to be
born). This is not remotely irrational, as if Louisiana had limited marriage to
right-handed people or barred it to red-heads. It is a sensible and unsurprising
recognition of biological reality. See, e.g. Nguyen v. I.N.S., 533 U.S. 53, 73 (2001)
(To fail to acknowledge even our most basic biological differences risks making
the guarantee of equal protection superficial, and so disserving it.).
9

Louisianas purpose in retaining the man-woman definition of marriage does not
depend on speculation that heterosexual couples make decisions regarding
marriage and procreation based on the status or recognition of same-sex
marriages. Pl. MSJ 22-23. Its policy depends on a far simpler rationale. Only man-
woman couples naturally procreate and the overwhelming majority of children are
born from man-woman unions; therefore, Louisiana could choose to offer an
inducementin the form of marriage and its attendant benefitsto [man-woman]
couples who make a solemn, long-term commitment to each other. Hernandez, 855
N.E.2d at 7.
10
To be sure, Louisiana could also choose to extend those benefits to

9
Louisianas marriage laws cannot be reduced to [m]oral condemnation of same-sex
couples and relationships. Pl. MSJ 22; see, e.g., Lawrence v. Texas, 539 U.S. 558, 585 (2003)
(OConnor, J., concurring) (Unlike the moral disapproval of same-sex relations other
reasons exist to promote the institution of marriage beyond mere moral disapproval of the
excluded group.). Nor can the intentions of more than 600,000 voters who approved the
2004 amendment be reduced to the bizarre comments of one legislator. Pl. MSJ 22 n.16; see
Forum for Equality PAC, 893 So.2d at 718, 733-37 (noting there were 619,908 votes for the
amendment, and discussing house and senate committee hearings).
10
Louisiana need not justify its policy by evidence that intact biological families
promot[e] an optimal environment for child-raising. Pl. MSJ 23. Louisianas citizens can
seek to promote the stability of intact biological families without being second-guessed by
courtroom factfinding. Heller v. Doe, 509 U.S. 312, 320 (1993) (quotes omitted). Nor must
Louisianas citizens provide an evidentiary basis for their reservations about altering the
definition of marriage. Cf. Schuette, 134 S. Ct. at 138 (voters may forbid affirmative action

17
same-sex couples, as New York and 15 other states have done, if its citizens at some
point reach consensus about an evolving understanding of the meaning of
equality. Windsor, 133 S. Ct. at 2693. But merely because Louisianaand 33 other
statestake a different view at present does not make them irrational. Such a
drastic conclusion would be inconsistent with the underlying premises of a
responsible, functioning democracy. Schuette, 134 S. Ct. at 1637.
Second, Louisiana placed its marriage definition in the state constitution to
ensure that a change as profound as altering the definition of marriage would occur
only through wide social consensus. Def. MSJ 17-20. Windsor itself recognized that
states act rationallyindeed, wiselyin doing so. With respect to a far-reaching
matter like same-sex marriage, Windsor emphasized that [t]he dynamics of state
government in the federal system are to allow the formation of consensus. 133 S.
Ct. at 2692-93; see also id. at 2689 (noting that New York adopted same-sex
marriage only [a]fter a statewide deliberative process that enable its citizens to
discuss and weigh arguments for and against same-sex marriage). Windsor did not
establish a one-way ratchet that allows New York citizens to reach one consensus
on same-sex marriage, but denies Louisiana citizens the right to reach another.
Both states decisions were grounded on the communitys considered perspective on
the historical roots of the institution of marriage, and both were without doubt a
proper exercise of sovereign authority within our federal system. Id. To
invalidate the decision of Louisianas citizens on such a profound matter would be

based on fear that it would become itself a source of resentments and hostilities, and
[w]hether those adverse results would follow is, and should be, the subject of debate).

18
demeaning to the democratic process. Schuette, 134 S. Ct. at 1637.
***
In sum, Louisianas marriage laws trigger rational basis review, not heightened
scrutiny, under binding precedent that Windsor reaffirmed. Because Louisianas
laws rationally further important state interests in (1) linking children with intact
families formed by their biological parents, and (2) ensuring that a profound
alteration to the definition of marriage occurs only through wide social consensus,
the Court should reject plaintiffs equal protection claims.
III. LOUISIANAS MARRIAGE LAWS SATISFY THE DUE PROCESS CLAUSE.
Plaintiffs also claim that Louisianas marriage laws burden their fundamental
right to marry, Pl. MSJ 17-19, and their fundamental right to parental authority,
id. at 20. These claims founder on the settled rule that [t]o establish a substantive
due process violation, a plaintiff must first both carefully describe that right and
establish it as deeply rooted in this Nations history and tradition. Malagon de
Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (quoting Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997)) (quotes omitted); see Def. MSJ 20-24.
11

First, a careful description of the asserted right must include the fact that,

11
Plaintiffs claimed right to parental authority is subject to the same Glucksberg
standard as the claimed right to marry. See Troxel v. Granville, 530 U.S. 57, 65 (2000)
(relying on Glucksberg). Plaintiffs also assert a right to remain married, Pl. MSJ 19, but
the only case they cite purporting to recognize such a right is the recent decision in
Obergefell v. Wymyslo, 962 F.Supp.2d 968, 979 (S.D. Ohio 2013). Obergefell incorrectly
created this right from Lawrence v. Texas, which expressly disclaimed it was saying
anything about whether the government must give formal recognition to any relationship
that homosexual persons may enter. 539 U.S. at 578. Furthermore, the right to remain
married, as asserted here, appears identical to a right to interstate recognition of
marriage, which finds no support in the Constitution. See Def. MSJ 7-11.

19
here, it involves the right to marry someone of the same sex. See Glucksberg, 521
U.S. at 722 (noting the Courts tradition of carefully formulating the interest at
stake in substantive-due-process cases).
12
Plaintiffs cannot simply invoke a
generalized right to marry; they must be more precise. See id. (rejecting right to
die as insufficiently precise, and instead describing asserted right as the right to
commit suicide which itself includes assistance in doing so).
13
Relying on a generic
right to marry proves too much: no one would say, for instance, that a state
burdens the right to marry by not allowing someone to wed her first cousin. In
that hypothetical case, a careful description of the asserted right would include
the consanguinity of the proposed spouse. Just so here: the right plaintiffs seek is
not simply to marry but to marry someone of the same sex. The right has not been
carefully described if the description omits that essential feature. Windsor
confirmed this: 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. 133 S. Ct. at 2689 (emphasis added).
Second, Windsor also forecloses the argument that a right to same-sex marriage
is objectively, deeply rooted in our traditions. Windsor observed that New Yorks

12
See also, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (before
break[ing] new ground in substantive due process, Court must focus on the allegations in
the complaint to determine how petitioner describes the constitutional right at stake)
13
See also, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (rejecting freedom from physical
restraint, and describing right as the alleged right of a child who has no available parent,
close relative, or legal guardian, and for whom the government is responsible, to be placed
in the custody of a willing-and-able private custodian rather than of a government-operated
or government-selected child-care institution); Collins, 503 U.S. at 125 (rejecting due
process right to have employers provide employees with a safe working environment as
insufficiently similar to cases recognizing due process right to have state take care of those
who have already been deprived of their liberty).

20
recognition and adoption of same-sex marriage involved a new perspective, a new
insight, remarking 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 a 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.

133 S. Ct. at 2689. Given that fact, the right to enter into a same-sex marriage
cannot be one deeply rooted in our Nations history and tradition. Glucksberg, 521
U.S. at 720-21; see also Hernandez, 855 N.E.2d at 9 (The right to marry someone of
the same sex is not deeply rooted; it has not even been asserted until relatively
recent times.). That does not disparage same-sex couples who wish to marry. It
merely says courts should not place this brand new development outside the arena
of public debate and legislative action by decreeing it a fundamental right. Id. at
720 (quoting Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).
Plaintiffs rely on right to marry cases such as Zablocki, Turner, and Loving, Pl.
MSJ 17-18, but those cases do not suggest anything like a right to marry someone of
the same sex. They stand for the proposition that states burden the right to marry
by, for instance: (1) barring marriage to people who shirk child support obligations
(Zablocki v. Redhail, 434 U.S. 374, 385-87 (1978)); (2) barring marriages by
prisoners not serving a life sentence (Turner v. Safely, 482 U.S. 78, 95-98 (1987));
and (3) barring marriage based on invidious racial classifications (Loving, 388 U.S.
at 11). Obviously, the right to marry recognized in these cases was shaped by their
context. See, e.g., Collins, 503 U.S. at 125 (in defining substantive due-process

21
rights, courts must focus on the allegations in the complaint to determine how
petitioner describes the constitutional right at stake). But none of those cases
purport to constitutionalize state marriage regulation or disrupt the vast bulk of
domestic relations law. See, e.g., Zablocki, 434 U.S. at 386 (By reaffirming the
fundamental character of the right to marry, we do not mean to suggest that every
state regulation which relates in any way to the incidents of or prerequisites for
marriage must be subjected to rigorous scrutiny.).
14
No one argues, for instance,
that these decisions establish a right to marry without a ceremony or the right to
marry ones first cousin. States may, and do, differ on these matters. See, e.g.,
Windsor, 133 S. Ct. at 2691-92 (noting that most States permit first cousins to
marry, but a handful prohibit the practice) (citations omitted).
In the same way, none of these cases purport to establish a right to marry
someone of the same sex. Loving, in particular, could not have done so: a mere five
years after Loving, the Supreme Court summarily rejected for want of a
substantial federal question the claim that the Constitution requires a state to
recognize same-sex marriage. Baker v. Nelson, 409 U.S. 810 (1972). But if any of
these cases established a right to same-sex marriage, surely Windsor would have
said so. To the contrary, Windsor said that marriage between a man and a woman
no doubt had been thought of by most people as essential to the very definition of

14
In light of that disclaimer, it is incorrect to say that cases like Zablocki recognized an
unembellished right to marry. Latta, 2014 WL 1909999, at *12. While the right recognized
by the Supreme Courts cases transcends ones race, confinement to prison, or ability to
support children, id. at *13, no case says the right transcends the sex of the proposed
spouse. Windsor confirmed the opposite by observing that the man-woman aspect of
marriage was historically considered as essential to the very definition of [marriage].
133 S. Ct. at 2689.

22
that term and to its role and function throughout the history of civilization. 133 S.
Ct. at 2689. The right to marry cases plaintiffs cite have said similar things about
marriage. Zablocki, for example, said the right involves the decision to marry and
raise a child in a traditional family setting and the right to procreate. 434 U.S. at
386.
15
These statements in Windsor, Zablocki, and other cases do not mean that the
Constitution contains its own definition of marriage. But they foreclose the notion
necessary to plaintiffs due process claimsthat a right to same-sex marriage is
deeply rooted in our Nations history and tradition. Glucksberg, 521 U.S. at 720.
Finally, plaintiffs rely on right to privacy cases. Pl. MSJ 17-18 (citing Planned
Parenthood of Pa. v. Casey, 505 U.S. 833, 851 (1992); Griswold v. Connecticut, 381
U.S. 479, 486 (1965); Lawrence v. Texas, 539 U.S. 558, 578 (2003)). Plaintiffs over-
read these decisions, which only protect certain private choices about sex and
procreation. See, e.g., Lawrence, 539 U.S. at 565 (describing Griswold as addressing
the right to make certain decisions regarding sexual conduct). But they do not
establish a right to compel official recognition of relationships formed as a result of
those private choices.
16
Lawrencethe case closest to plaintiffs claimsexplicitly
noted this limitation. While recognizing that a state could not punish consensual

15
See also, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)
([m]arriage and procreation are fundamental to the very existence and survival of the
race); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (due process includes right to marry,
establish a home and bring up children); Maynard v. Hill, 125 U.S. 190, 211 (1888)
(marriage is an institution, in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society, without which there would
be neither civilization nor progress).
16
See, e.g., Hernandez, 855 N.E.2d at 10 (Plaintiffs here do not, as the petitioners in
Lawrence did, seek protection against state intrusion on intimate, private activity. They
seek from the courts access to a state-conferred benefit that the Legislature has rationally
limited to opposite-sex couples.).

23
same-sex relations, Lawrence underscored that it d[id] not involve whether the
government must give formal recognition to any relationship that homosexual
persons may enter. 539 U.S. at 578; see also id. at 567 (observing that the Texas
law at issue seek[s] to control a personal relationship that, whether or not entitled
to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals) (emphasis added). Plaintiffs rely heavily on Lawrence,
Pl. MSJ 18, but Lawrence disclaims the reading plaintiffs would impose on it
namely, that the sexual privacy it protects compels recognition of same-sex
marriage. Lawrence does no such thing.
17

CONCLUSION
The Court should (1) deny plaintiffs motion for partial summary judgment (Doc.
86), and (2) grant defendants motion for partial summary judgment and motion to
dismiss (Doc. 84).
s/ S. Kyle Duncan
S. Kyle Duncan, 25038, T.A.
Special Assistant Attorney General
P.O. Box 94005
Phone: (202) 714-9492
Fax: (225) 326-6098

17
A district court recently announced that Lawrence unequivocally cements marriage as
among the constitutionally protected liberties shared by homosexual and heterosexual
persons alike. Latta, 2014 WL 1909999, at *13. That is wrong. Lawrence unequivocally
disclaimed that it was saying anything about whether the government must give formal
recognition to any relationship that homosexual persons may enter. 539 U.S. at 578.

24

I hereby certify that on May 19, 2014, I electronically filed the foregoing with the
Clerk of Court by using the CM/ECF system, which will be electronically served on
all counsel of record.

/s S. Kyle Duncan
S. Kyle Duncan
TABLE OF CONTENTS

Introduction .................................................................................................................... 1

Argument ........................................................................................................................ 2

I. Plaintiffs would nullify Louisianas authority to define marriage. ................... 2
II. Louisianas marriage laws satisfy the Equal Protection Clause. ...................... 6

A. Sexual orientation does not trigger heightened scrutiny. ............................ 6

1. Windsor reaffirms binding precedent that applies rational basis
review to sexual-orientation classifications. ............................................ 6

longstanding conflicts-of-law rules. .......................................................... 9

3. Binding precedent forecloses plaintiffs suspect-class argument. ........ 10

B. Louisianas marriage laws do not discriminate based on sex. ................... 11

C. Louisianas marriage laws satisfy rational basis review. ........................... 15

III. Louisianas marriage laws satisfy the Due Process Clause. ......................... 18

Conclusion ..................................................................................................................... 23

Certificate of Service ..................................................................................................... 24

2

Cases
Adar v. Smith,
639 F.3d 146 (5th Cir. 2011) ..................................................................................... 1

Baker v. Gen. Motors Corp.,
522 U.S. 222 (1998) ................................................................................................... 3

Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................................. 21

Baker v. State,
744 A.2d 864 (Vt. 1999) ........................................................................................... 10

Bishop v. United States ex rel. Holder,
962 F.Supp.2d 1252 (N.D. Okla. 2014) ............................................................. 12, 13

Bloom v. Willis,
60 So.2d 415 (La. 1952) ............................................................................................. 9

Bond v. United States,
131 S. Ct. 2355 (2011) ............................................................................................... 4

Brinson v. Brinson,
96 So.2d 653 (La. 1957) ............................................................................................. 9

Chivers v. Couch Motor Lines, Inc.,
159 So.2d 544 (La. App. 3 Cir. 1964) ...................................................................... 10

City of Cleburne v. Cleburne Living Ctr., Inc.,
472 U.S. 432 (1985) ................................................................................................... 8

Collins v. City of Harker Heights,
503 U.S. 115 (1992) ........................................................................................... 19, 20

Craig v. Boren,
429 U.S. 190 (1976) ................................................................................................. 13

Doe v. Jindal,
851 F.Supp.2d 995 (E.D. La. 2012) ......................................................................... 15

Dred Scott v. Sandford,
60 U.S. 393 (1856) ..................................................................................................... 6
3

Fritsche v. Vermilion Parish Hosp. Serv. Dist. No. 2,
2004-1192 (La. App. 3 Cir. 2/2/05); 893 So.2d 935 ................................................. 10

Frontiero v. Richardson,
411 U.S. 677 (1973) ................................................................................................. 13

Forum for Equality PAC v. McKeithen,
2004-2477 (La. 1/19/05); 893 So.2d 715 ............................................................ 10, 16

Ghassemi v. Ghassemi,
2007-1927 (La. App. 1 Cir. 10/15/08); 998 So.2d 731 ......................................... 9, 10

Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................................................................. 22

Heller v. Doe,
509 U.S. 312 (1993) ................................................................................................. 16

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ................................................................................ passim

In re Opinions of the Justices,
802 N.E.2d 565 (Mass. 2004) .................................................................................. 10

Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) ............................................................................... 7, 11

Kirchberg v. Feenstra,
450 U.S. 455 (1981) ................................................................................................. 12

Latta v. Otter,
__ F.Supp.2d __, 2014 WL 1909999 (D. Idaho May 13, 2014) ................... 14, 21, 23

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................... 16, 18, 22, 23

Louisville Gas & Elec. v. Coleman,
277 U.S. 32 (1928) ..................................................................................................... 7

Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................ 5-6, 13, 14, 20, 21

4
Mahone v. Addicks Utility Dist.,
836 F.2d 921 (5th Cir. 1988) ..................................................................................... 8

Maynard v. Hill,
125 U.S. 190 (1888) ................................................................................................. 22

Meyer v. Nebraska,
262 U.S. 390 (1923) ................................................................................................. 22

Malagon de Fuentes v. Gonzales,
462 F.3d 498 (5th Cir. 2006) ................................................................................... 18

Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ............................................................................................. 9, 13

Moore v. East Cleveland,
431 U.S. 494 (1977) ................................................................................................. 20

Nguyen v. I.N.S.,
533 U.S. 53 (2001) ................................................................................................... 16

Obergefell v. Wymyslo,
962 F.Supp.2d 968 (S.D. Ohio 2013) ...................................................................... 18

Personnel Admin. of Mass. v. Feeney,
442 U.S. 226 (1979) ................................................................................................. 12

Planned Parenthood of Pa. v. Casey,
505 U.S. 833 (1992) ................................................................................................. 22

Reed v. Reed,
404 U.S. 71 (1971) ................................................................................................... 12

Reno v. Flores,
507 U.S. 292 (1993) ................................................................................................. 19

Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,
490 U.S. 477 (1989) ................................................................................................... 7

Romer v. Evans,
517 U.S. 620 (1996) ......................................................................................... 7, 8, 11

Schuette v. BAMN,
134 S. Ct. 1623 (2014) ...................................................................... 1, 3, 4, 16-17, 18
5

Sevcik v. Sandoval,
911 F.Supp.2d 996 (D. Nev. 2012) .................................................................... 13, 14

Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) ................................................................................................. 22

Stanton v. Stanton,
421 U.S. 7 (1975) .................................................................................................... 13

SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2013) ..................................................................................... 8

Succession of Caballero v. Executor,
24 La. Ann. 573 (1872) ............................................................................................ 10

Succession of Marinoni,
148 So. 888 (La. 1933) ............................................................................................... 9

Troxel v. Granville,
530 U.S. 57 (2000) ................................................................................................... 18

Turner v. Safely,
482 U.S. 78 (1987) ................................................................................................... 20

United States ex rel. Modianos v. Tuttle,
12 F.2d 927 (E.D. La. 1925) ................................................................................. 9-10

United States v. Virginia,
518 U.S. 515 (1996) ....................................................................................... 8, 12, 13

United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................... passim

Vill. of Arlington Heights v. Metropolitan Housing Devel. Corp.,
429 U.S. 252 (1977) ................................................................................................. 14

Washington v. Glucksberg,
521 U.S. 702 (1997) ..................................................................................... 18, 19, 22

Wilkinson v. Wilkinson,
323 So.2d 120 (La. 1975) ......................................................................................... 15

6
Zablocki v. Redhail,
434 U.S. 374 (1978) ..................................................................................... 20, 21, 22

Statutes
Defense of Marriage Act,
110 Stat. 2419 .................................................................................................. passim

28 U.S.C. 1738C ............................................................................................................ 3

LA. CIV. CODE art. 3520 ..................................................................................... 1-2, 9, 10

LA. R.S. 47:294 ................................................................................................................ 2

U.S. CONST. art. IV .......................................................................................................... 3

U.S. CONST. amend. V ..................................................................................................... 2

U.S. CONST. amend. XIV ....................................................................................... passim

LA. CONST. art. XII, 15 ................................................................................................. 1

Other Authorities
IRS Revenue Ruling 2013-17 ......................................................................................... 2

Louisiana Revenue Information Bulletin No. 13-024 ................................................... 2

Merits Brief for United States in United States v. Windsor (No. 12-307) ................. 11

Restatement (2d) Conflicts of Laws 284 ................................................................... 10




Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION
FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION
Plaintiffs say the United States Constitution requires Louisiana to recognize
same-sex marriage. But, just last year, the Supreme Court said each states citizens
may decide that matter for themselves. United States v. Windsor, 133 S. Ct. 2675
(2013). Louisianas citizens did so in 2004. The idea that the Constitution overrides
their decision is demeaning to the democratic process, Schuette v. BAMN, 134 S.
Ct. 1623, 1637 (2014) (op. of Kennedy, J.), and should be rejected.
Based on the parties submissions, there are no genuine disputes as to any
material facts.
1
The parties agree that Louisiana law prevents defendants from
recognizing plaintiffs same-sex marriages. LA. CONST. art. XII, 15; LA. CIV. CODE

1
Defendants do not contest plaintiffs standing. See Windsor, 133 S. Ct. at 2685 (plaintiff
suffered a redressable injury when made to pay taxes under allegedly invalid law); Adar
v. Smith, 639 F.3d 146, 150 (5th Cir. 2011) (en banc) (Appellees had standing when denied
a revised birth certificate containing [their] names as parents). Plaintiffs full faith and
credit claim, however, should be dismissed for failure to state a claim. Def. MSJ 10-11.

2
art. 3520(B).
2
The Court can decide the constitutional recognition issues as a matter
of law. Therefore, defendants ask the Court to: (1) deny plaintiffs partial motion for
summary judgment (Doc. 86), and (2) grant defendants partial motion for summary
ARGUMENT
Plaintiffs equal protection and due process claims fail on their own terms. See II,
III, infra. They also fail because they would nullify Louisianas historic and
essential authority to define the marital relation. Windsor, 133 S. Ct. at 2692. That
authority was of central relevance, id., to the Supreme Courts decision last year
invalidating the federal marriage definition in DOMA section 3. The Court found
section 3 violated the Fifth Amendment rights of same-sex couples lawfully married
under New York law because of section 3s unusual deviation from the usual
tradition of recognizing and accepting state definitions of marriage. Id. at 2693.
New Yorks decision to recognize and then to allow same-sex marriages was,
Windsor underscored, without doubt a proper exercise of its sovereign authority
within our federal system. Id. at 2692. Windsor thus affirms that states act within

2
See Pl. MSJ (Doc. 86-1) 4; Pl. Stmt. (Doc. 86-4) 2; Def. MSJ (Doc. 84-1) 1-2; Def. Stmt.
(Doc. 84-3) 1-3. Defendants disagree, however, with some of plaintiffs characterizations of
Louisiana law. For instance, it is incorrect to say that Louisiana Revenue Information
Bulletin No. 13-024 will not follow IRS Revenue Ruling 2013-17, Doc. 86-4 9, since the
IRS ruling applies only to the federal government. Doc. 84-4 (Barfield aff.) 10, 12. It is
also incorrect to say that the Louisiana bulletin and tax forms are contrary to La. R.S.
47:294, Doc. 86-4 12, since the statute must be construed in light of the Louisiana
Constitution. Doc. 84-4 (Barfield aff.) 7-12. But these are legal, not factual
disagreements, and they do not prevent the Court from deciding the constitutional issues as
a matter of law.

3
their authority when they democratically decide whether to recognize same-sex
marriage. See, e.g., id. at 2692-93 (observing [t]he dynamics of state government in
the federal system are to allow the formation of consensus respecting a far-
reaching matter like same-sex marriage). In contravention of Windsor, plaintiffs
would constitutionalize the issue and nullify Louisianas authority to decide it.
Plaintiffs claims should fail for that reason alone. See Def. MSJ (Doc. 84-1) 3-7.
3

Last month, the Supreme Court reinforced Windsors respect for state authority
in Schuette, which rejected an equal protection challenge to a Michigan
constitutional amendment forbidding affirmative action in public universities. The
Court found that Michigan voters [had] exercised their privilege to enact [the
amendment] as a basic exercise of their democratic power. 134 S. Ct. at 1636 (op. of
Kennedy, J.). Recognizing the amendment reflected the national dialogue
regarding the wisdom and practicality of [affirmative action], Schuette held that
courts may not disempower the voters from choosing which path to follow. Id. at
1631, 1635. To deem affirmative action too sensitive, complex, or delicate for
voters would be an unprecedented restriction on the exercise of a fundamental
right held not just by one person but by all in common. Id. at 1637. It is
demeaning to the democratic process, the Court said, to presume that the voters
are not capable of deciding an issue of this sensitivity on decent and rational

3
Their claims also fail in light of the Faith and Credit Clause, which does not require a
state to recognize out-of-state marriages. Def. MSJ 7-10; Baker v. Gen. Motors Corp., 522
U.S. 222, 232-33 (1998) (full faith and credit does not compel a state to substitute the
statutes of other states for its own statutes dealing with a subject matter concerning which
it is competent to legislate) (citation omitted). Congress confirmed that principle by
enacting DOMA section 2. Def. MSJ 9-10 (discussing 28 U.S.C. 1738C).

4
grounds, and even if debates like these may shade into rancor that does not
justify removing [them] from the voters reach. Id. at 1637, 1638.
Schuette speaks directly to the issue of state authority here. As with affirmative
action, there is an ongoing national dialogue regarding [same-sex marriage],
and courts may not disempower the voters from choosing which path to follow. Id.
at 1631, 1635. As with affirmative action, it would be demeaning to the democratic
process to presume voters are not capable of deciding an issue of this sensitivity
on decent and rational grounds. Id. at 1637. Indeed, it is the responsibility of
votersnot the courtsto decide the issue, because [f]reedom embraces the right,
indeed the duty, to engage in a rational, civic discourse in order to determine how
best to form a consensus to shape the destiny of the Nation and its people. Id; cf.
Windsor, 133 S. Ct. at 2692 (In acting first to recognize and then to allow same sex
marriages, New York was responding to the initiative of those who [sought] a voice
in shaping the destiny of their own times.) (quoting Bond v. United States, 131 S.
Ct. 2355, 2359 (2011)). Schuette thus reinforces Windsors point that a states
decision to recognize same-sex marriage, or not to, is without doubt a proper
exercise of its sovereign authority within our federal system. 133 S. Ct. at 2692.
Louisianas voters spoke to the issue in 2004, as New Yorks voters did in 2011.
With respect to the validity of that sovereign decision, Windsor and Schuette speak
in unison: There is no authority in the Constitution of the United States or in [the
Supreme] Courts precedents for the Judiciary to set aside [the] laws that commit
this policy determination to the voters. Schuette, 134 S. Ct. at 1638.

5
While noting Windsors concern for the traditional State prerogative to define
marriage within its borders, plaintiffs assert that, at bottom, Windsor was an
equal-protection and due-process case, not a federalism case. Pl. MSJ 24. This
radically oversimplifies Windsor, in which federalism and individual rights worked
hand-in-glove. Windsor ruled DOMA section 3 was a discrimination[ ] of an
unusual character precisely because it was an unusual deviation from the usual
tradition of recognizing and accepting state definitions of marriage. 133 S. Ct. at
2693. To be sure, the Court did not ground its decision solely in federalism, because
it recognized a limited federal authority over marriage. See id. at 2690 (noting
discrete legislative examples that establish the constitutionality of limited federal
laws that regulate the meaning of marriage for federal purposes). But that does not
change the fact that Windsors holding turned on section 3s broad usurpation of
the States power in defining the marital relation. Id. at 2692. That power, which
the Court spent nine paragraphs discussing, was not unnecessary to the decision.
Pl MSJ 24. To the contrary, the Court said that, [i]n order to assess the validity of
[section 3] it is necessary to discuss the extent of the state power and authority
over marriage as a matter of history and tradition, 133 S. Ct. at 2691, and
concluded that [t]he States power in defining the marital relation is of central
relevance in this case, id. at 2692 (emphases added).
Unable to erase Windsors obvious grounding in federalism, plaintiffs instead
raise Loving v. Virginia, 388 U.S. 1 (1967), arguing that Virginia advanced a
federalism argument in that case too. Pl. MSJ (Doc. 86-1) 24. That is a smoke-

6
screen. In Loving, Virginia vainly attempted to use federalism to justify invidious
racial discrimination that violated the clear and central purpose of the Fourteenth
Amendment and triggered strict scrutiny. Loving, 388 U.S. at 11, 10. This case, by
contrast, involves a novel right which no state had even recognized ten years ago
and which 34 states do not recognize today, and a classification which triggers only
rational basis review. See II.A, infra. The fact that the Loving defendants invoked
federalism to justify white supremacy laws has nothing to do with Louisianas
federalism argument in this case. One might as well say that the fact that the
plaintiffs in Dred Scott v. Sandford invoked due process to justify slavery should
count against plaintiffs due process arguments here.
4
That argument would be just
as baseless as plaintiffs Loving argument.
II. LOUISIANAS MARRIAGE LAWS SATISFY THE EQUAL PROTECTION CLAUSE.
A. Sexual orientation does not trigger heightened scrutiny.
Plaintiffs spend much of their argument urging the Court to apply heightened
scrutiny. Pl. MSJ 10-16. They rely on Windsor and, alternatively, on the traditional
suspect-class factors. But binding precedent subjects Louisianas marriage laws
only to rational basis review, which they satisfy. See Def. MSJ 12-20.
1. Windsor reaffirms binding precedent that applies rational
basis review to sexual-orientation classifications.
As plaintiffs concede, [t]he Fifth Circuit has applied the lowest level of equal

4
See Dred Scott v. Sandford, 60 U.S. 393, 450 (1856) (reasoning that an act of Congress
which deprives a citizen of the United States of his liberty or property, merely because he
came himself or brought his property into a particular Territory of the United States,
could hardly be dignified with the name of due process of law); cf. id. at 626 (Curtis, J.,
dissenting) (Nor, in my judgment, will the position, that a prohibition to bring slaves into a
Territory deprives any one of his property without due process of law, bear examination.).

7
protection scrutiny, rational basis, to sexual-orientation discrimination. Pl. MSJ 11
(citing Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004)); see also Def. MSJ 11
n.7 ([n]ine other circuits agree). Johnson remains good law: it followed the
Supreme Courts decision in Romer v. Evans, which applied rational basis review to
a sexual-orientation classification in the Colorado Constitution. See Romer, 517 U.S.
620, 633 (1996) (asking whether Amendment 2 bear[s] a rational relationship to an
independent and legitimate legislative end). Windsor expressly reaffirmed Romer.
See Windsor, 133 S. Ct. at 2692 (relying on and quoting Romer, 517 U.S. at 633).
Unless and until the Supreme Court demands heightened scrutiny for sexual
orientation, lower courts must apply rational basis under Romer. See, e.g.,
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (the
Court of Appeals should follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own decisions).
Contrary to plaintiffs argument, Pl. MSJ 11, Windsor did not mandate
heightened scrutiny when it said that [d]iscriminations of an unusual character
especially suggest careful consideration to determine whether they are obnoxious to
the constitutional provision. 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633).
That language from Windsor could not possibly require heightened scrutiny: it is a
quotation from Romer, which applied rational basis.
5
Moreover, plaintiffs
misunderstand Windsors point. Section 3 of DOMA was unusual, not because it

5
Furthermore, Romer drew this careful consideration language from a case invalidating
a state tax under rational basis. See Louisville Gas & Elec. v. Coleman, 277 U.S. 32, 37-38
(1928) (tax must bear[ ] a reasonable and just relation to the act in respect to which the
classification is proposed) (quotes omitted).

8
classified by sexual orientation, but because it depart[ed] from [the] history and
tradition of [federal] reliance on state law to define marriage. Windsor, 133 S. Ct.
at 2692. Louisianas marriage laws are the opposite of section 3: far from a novel
intrusion into domestic relations law, they instead fall squarely within Louisianas
historic and essential authority to define the marital relation. Id.
The Court should not follow the Ninth Circuits SmithKline decision, which
misinterpreted Windsor. See Pl. MSJ 11-13 (relying on SmithKline Beecham Corp.
v. Abbott Labs., 740 F.3d 471 (9th Cir. 2013)). Windsor found DOMA section 3 was
actually motivated by an illegitimate purpose, see 133 S. Ct. at 2696, contravening
a basic requirement of rational basis review. See, e.g., Mahone v. Addicks Utility
Dist., 836 F.2d 921, 933 (5th Cir. 1988) (classification passes rational basis if
rationally related to a legitimate state interest) (citing City of Cleburne v. Cleburne
Living Ctr., Inc., 472 U.S. 432, 439-40 (1985)). This is the same rational basis
review applied in Romer. See 517 U.S. at 632 (explaining, [i]n the ordinary case, a
law will be sustained if it can be said to advance a legitimate government interest).
Nowhere does Windsor say it overruled Romer and established a new heightened
scrutiny standard for sexual-orientation, and the Ninth Circuit was mistaken to
read such an intent into Windsor. (Moreover, the Ninth Circuits decision is
currently subject to a sua sponte en banc call, see Def. MSJ 11 n.7).
Finally, common-sense says Windsor did not adopt heightened scrutiny.
Heightened scrutiny involves a distinct formula. See, e.g., United States v. Virginia,
518 U.S. 515, 532-33 (1996) (under heightened scrutiny, state bears demanding

9
burden of showing an exceedingly persuasive justification, namely that the
classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of
those objectives) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982)). The Windsor opinion contains no hint of that formula.
longstanding conflicts-of-law rules.
Plaintiffs alternative argument for heightened scrutiny under Windsor contends
that Louisianas non-recognition of same-sex marriage is an unusual deviation from
its historic practice. They claim that, [j]ust as section 3 of DOMA departed from
federal reliance on state marriage law, so too do Louisianas marriage laws
depart[ ] from Louisiana history and tradition of upholding the validity of out-of-
state marriages. Pl. MSJ 11. Plaintiffs misunderstand Louisiana law.
The rule in Louisiana has always been that it will recognize out-of-state
marriages as a matter of comity, but this spirit of comity does not require
[Louisiana] to recognize a marriage which is contrary to its own public policy.
Brinson v. Brinson, 96 So.2d 653, 659 (La. 1957) (refusing to recognize fraudulent
common-law marriage from Mississippi); see also, e.g., Bloom v. Willis, 60 So.2d 415,
417 (La. 1952) (recognizing another states non-ceremonial marriage out of comity)
(citing Succession of Marinoni, 148 So. 888 (La. 1933)). Plaintiffs own cases
recognize this long-standing rule,
6
which was codified in Civil Code article 3520.

6
See Pl. MSJ 4-5; see, e.g., Ghassemi v. Ghassemi, 2007-1927, p. 11 n.15 (La. App. 1 Cir.
10/15/08), 998 So.2d 731, 739 n.15 (traditional rule required court to determine whether
recognizing [the foreign marriage] would violate the public policy of [Louisiana]); United

10
See, e.g., Ghassemi, 998 So.2d at 739 n.15 (article 3520 essentially codified the
previous comity analysis); cf. Restatement (2d) Conflicts of Laws 284 cmt. c
(noting rule that [a] state will not give a particular incident to a foreign marriage
when to do so would be contrary to its strong local policy).
Consequently, there is nothing unusual about Louisianas decision to deny
recognition to same-sex marriages on strong public policy grounds. That decision
falls squarely within Louisianas longstanding conflicts-of-law approach. Nor is it
unusual that Louisiana addressed the issue recently, and not before: the issue arose
only in the last two decades. See, e.g., Baker v. State, 744 A.2d 864, 868 (Vt. 1999)
(Vermont Constitution requires state to extend to same-sex couples the common
benefits and protections that flow from marriage under Vermont law).
7

3. Binding precedent forecloses plaintiffs suspect-class argument.
Alternatively, plaintiffs claim that sexual orientation qualifies as a suspect or

States ex rel. Modianos v. Tuttle, 12 F.2d 927, 928 (E.D. La. 1925) (noting well-recognized
exception to validity of foreign marriages where the law-making authority has declared
[the marriage] shall not be allowed any validity as a matter of general policy); Succession
of Caballero v. Executor, 24 La. Ann. 573, 575 (1872) (noting well settled rule denying
foreign marriages recognition for reasons of public policy). A few Louisiana appellate
courts misstate the rule as one of full faith and credit, see, e.g., Fritsche v. Vermilion
Parish Hosp. Serv. Dist. No. 2, 2004-1192, p. 3 (La. App. 3 Cir. 2/2/05), 893 So.2d 935, 937-
38), but the vast weight of authority correctly identifies the rule purely as one of comity.
See, e.g., Chivers v. Couch Motor Lines, Inc., 159 So.2d 544, 549 (La. App. 3 Cir. 1964) (Tate,
J.) (relying on traditional rule in Brinson and Marinoni, supra). In any event, article 3520
plainly codifies the rule as one of comity. See LA. CIV. CODE art. 3520 cmt. b (presumptive
validity of foreign marriage may be defeated by showing applicable law would invalidate
the marriage for reasons of a strong public policy).
7
See also, e.g., In re Opinions of the Justices, 802 N.E.2d 565, 569-72 (Mass. 2004)
(allowing civil unions but not marriage for same-sex couples violates the equal protection
and due process requirements of Massachusetts Constitution); and see generally Forum for
Equality PAC v. McKeithen, 2004-2477, pp. 26-28 (La. 1/19/05); 893 So.2d 715, 733-34
(discussing motivation for enacting Louisiana Constitution article XII, 15).

11
quasi-suspect class under traditional suspect-class factors. Pl. MSJ 13-15. This
argument, however, is foreclosed by binding precedentJohnson and Romerthat
sexual-orientation classifications merit rational basis review only. As explained
above, Windsor reaffirmed this precedent. See II.A.1, supra.
Indeed, in Windsor the Supreme Court had ample opportunity to adopt this
suspect-class rationale, and yet did not. For instance, the Second Circuit opinion
under review elaborately analyzed the suspect-class factors and applied heightened
scrutiny. Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012). In the
Supreme Court, the Solicitor General spent nineteen pages making the same
argument. Merits Br. for United States at 16-36, United States v. Windsor, 133 S.
Ct. 2675 (2013) (No. 12-307). Finally, while the case was in the lower courts, the
Attorney General had announced the Presidents view that classifications based on
sexual orientation should be subject to a heightened standard of scrutiny, leading
the Justice Department to stop defending DOMA. Windsor, 133 S. Ct. at 2683
(quoting Attorney General letter). Despite all this, the Supreme Court did not
analyze the suspect-class factors and adopt heightened scrutiny. Surely, if the Court
had intended to do soand in the process overrule Romer and reject nine contrary
circuit decisions applying rational basis reviewit would have said so.
B. Louisianas marriage laws do not discriminate based on sex.
Alternatively, plaintiffs claim Louisianas marriage laws trigger heightened
scrutiny because they discriminate based on sex. They argue Louisiana does not
recognize their marriages solely [b]ecause each [p]laintiff is married to a person of
the same sex, rather than a person of the opposite sex, Pl. MSJ 15, constituting

12
sex-based discrimination under equal protection. Plaintiffs are mistaken.
Louisianas marriage laws do not engage in sex discrimination because they do
not advantage one sex over the other. See, e.g., Personnel Admin. of Mass. v. Feeney,
442 U.S. 226, 273 (1979) (sex discrimination occurs when laws are overtly or
covertly designed to prefer males over females); United States v. Virginia, 518 U.S.
at 532 (the Court has carefully inspected official action that closes a door or denies
opportunity to women (or to men)). With respect to marriage, Louisiana treats men
and women exactly the same: it does not draw any distinctions between same-sex
male couples and same-sex female couples, does not place any disproportionate
burdens on men and women, and does not draw upon stereotypes applicable only to
male or female couples. Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252,
1286 (N.D. Okla. 2014). It would be a different matter if Louisiana recognized out-
of-state marriages between two men but not two women, or allowed married lesbian
couples to adopt but not married gay couples. See, e.g., Hernandez v. Robles, 855
N.E.2d 1, 10 (N.Y. 2006) (New Yorks man-woman definition does not put men and
women in different classes, and give one class a benefit not given to the other).
That would be sex discrimination, but that is not what we have here.
Case law shows what actual sex discrimination looks like. Laws discriminate by
sex when they (1) require that males must be preferred to females as estate
administrators (Reed v. Reed, 404 U.S. 71, 73 (1971)); (2) make the husband head
and master of property owned in community with his wife (Kirchberg v. Feenstra,
450 U.S. 455, 462 (1981)); (3) require parents to support boys until 21, but girls only

13
until 18 (Stanton v. Stanton, 421 U.S. 7, 9-10 (1975)); (5) bar sale of 3.2% beer to
males under 21, but to females only under 18 (Craig v. Boren, 429 U.S. 190, 191-92
(1976)); (6) allow male service-members to claim wives as dependents without
showing actual financial dependence, but require female service-members to
provide proof to claim husbands as dependents (Frontiero v. Richardson, 411 U.S.
677, 678 (1973)); (7) exclude males from the sole state-supported nursing school
(Miss. Univ. for Women v. Hogan, 458 U.S. at 719); (8) exclude women from an elite
military training academy (and provided women with an inferior academy) (United
States v. Virginia, 518 U.S. at 547). In light of these instances of real sex
discrimination, [c]ommon sense dictates that Louisianas man-woman definition of
marriage has nothing to do with gender-based prejudice or stereotypes, and
cannot be subject to heightened scrutiny on that basis. Bishop, 962 F.Supp.2d at
1286; see also, e.g., Sevcik v. Sandoval, 911 F.Supp.2d 996, 1005 (D. Nev. 2012)
(man-woman marriage laws are not directed toward persons of any particular
gender, nor do they affect people of any particular gender disproportionately such
that a gender-based animus can reasonably be perceived).
Plaintiffs theory is not helped by the argument that the laws in Loving v.
Virginia, 388 U.S. 1, discriminated equally against blacks and whites and yet
were treated as race discrimination. See, e.g., Sevcik, 911 F.Supp.2d at 1004-05
(considering and rejecting this argument). There was nothing equal about the
anti-miscegenation laws Loving struck down. Those laws, which arose as an
incident to slavery, 388 U.S. at 6, imposed a sham equality that was in

14
substance anti-black legislation. Hernandez, 855 N.E.2d at 11. They were
measures designed to maintain White Supremacy. Loving, 388 U.S. at 11; see also
Sevcik, 911 F.Supp.2d at 1005 (In Loving, the elements of the disability were
different as between Caucasians and non-Caucasians, whereas here, the burden on
men and women is the same.). Loving thus treated anti-miscegenation laws as
what they were: invidious racial discrimination. 388 U.S. at 11; see also Vill. of
Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 265 (1977)
(Proof of racially discriminatory intent or purpose is required to show a violation of
the Equal Protection Clause.). But Louisianas marriage laws are wholly different.
There is no indication that they have the purpose or effect of disadvantaging males
or females, and therefore under settled law they cannot be considered sex
discrimination under equal protection.
If Louisianas marriage laws must be characterized as classifying for purposes
of this case, then they classify by sexual preference. See, e.g., Bishop, 962 F.Supp.2d
at 1287 ([i]nstead of gender-based discrimination sexual orientation provides the
best descriptor for the class-based distinction being drawn by a man-woman
definition of marriage); Sevick, 911 F.Supp.2d at 1005 (concluding that the level of
scrutiny applicable to sexual-orientation-based distinctions applies).
8
This means
that Louisianas laws do not trigger the heightened scrutiny reserved for sex-based
classifications but are instead subject to rational basis review. See II.A.1, supra.

8
The most recent district court decisionwhile mistaken on many counts, see infra
correctly concludes that the man-woman marriage definition does not prefer one gender
over the other and therefore does not engage in sex discrimination. See Latta v. Otter, __
F.Supp.2d __, 2014 WL 1909999, at *15 (D. Idaho May 13, 2014).

15
C. Louisianas marriage laws satisfy rational basis review.
To prevail under rational basis, plaintiffs must show that Louisianas decision to
retain the man-woman definition of marriage in its Constitution is so unrelated to
the achievement of any combination of legitimate purposes that [the Court] can only
conclude that [Louisianas] actions were irrational. Doe v. Jindal, 851 F.Supp.2d
995, 1005-06 (E.D. La. 2012) (quotes omitted) (first brackets added); see also Def.
MSJ 11-12 (discussing rational basis review). Plaintiffs cannot do so.
First, Louisiana rationally defines civil marriage as a man-woman union
because one of its principal purposes is to link children to an intact family formed
by their biological parents. See Def. MSJ 12-17; see also, e.g., Hernandez, 855
N.E.2d at 21 (Graffeo, J., concurring) ([A]n orderly society requires some
mechanism for coping with the fact that sexual intercourse commonly results in
pregnancy and childbirth. The institution of marriage is that mechanism.). That
purpose is amply displayed in Louisiana family law by a web of legal presumptions
linking marriage, biological parentage, and child protection. See Def. MSJ 13-14;
Wilkinson v. Wilkinson, 323 So.2d 120, 124 (La. 1975) (the public policy of
Louisiana that every effort must be made to uphold the validity of marriages is
closely intertwined with the presumption of legitimacy). Louisianas marriage laws
are structured around the biological reality that only opposite-sex couples naturally
procreate and that most children are born from the union of opposite-sex couples.
See, e.g., Hernandez, 855 N.E.2d at 7 (because it remains true that the vast
majority of children are born as a result of a sexual relationship between a man and
a woman, a legislature could find that an important function of marriage is to

16
create stability and permanence in the relationships that cause children to be
born). This is not remotely irrational, as if Louisiana had limited marriage to
right-handed people or barred it to red-heads. It is a sensible and unsurprising
recognition of biological reality. See, e.g. Nguyen v. I.N.S., 533 U.S. 53, 73 (2001)
(To fail to acknowledge even our most basic biological differences risks making
the guarantee of equal protection superficial, and so disserving it.).
9

Louisianas purpose in retaining the man-woman definition of marriage does not
depend on speculation that heterosexual couples make decisions regarding
marriage and procreation based on the status or recognition of same-sex
marriages. Pl. MSJ 22-23. Its policy depends on a far simpler rationale. Only man-
woman couples naturally procreate and the overwhelming majority of children are
born from man-woman unions; therefore, Louisiana could choose to offer an
inducementin the form of marriage and its attendant benefitsto [man-woman]
couples who make a solemn, long-term commitment to each other. Hernandez, 855
N.E.2d at 7.
10
To be sure, Louisiana could also choose to extend those benefits to

9
Louisianas marriage laws cannot be reduced to [m]oral condemnation of same-sex
couples and relationships. Pl. MSJ 22; see, e.g., Lawrence v. Texas, 539 U.S. 558, 585 (2003)
(OConnor, J., concurring) (Unlike the moral disapproval of same-sex relations other
reasons exist to promote the institution of marriage beyond mere moral disapproval of the
excluded group.). Nor can the intentions of more than 600,000 voters who approved the
2004 amendment be reduced to the bizarre comments of one legislator. Pl. MSJ 22 n.16; see
Forum for Equality PAC, 893 So.2d at 718, 733-37 (noting there were 619,908 votes for the
amendment, and discussing house and senate committee hearings).
10
Louisiana need not justify its policy by evidence that intact biological families
promot[e] an optimal environment for child-raising. Pl. MSJ 23. Louisianas citizens can
seek to promote the stability of intact biological families without being second-guessed by
courtroom factfinding. Heller v. Doe, 509 U.S. 312, 320 (1993) (quotes omitted). Nor must
Louisianas citizens provide an evidentiary basis for their reservations about altering the
definition of marriage. Cf. Schuette, 134 S. Ct. at 138 (voters may forbid affirmative action

17
same-sex couples, as New York and 15 other states have done, if its citizens at some
point reach consensus about an evolving understanding of the meaning of
equality. Windsor, 133 S. Ct. at 2693. But merely because Louisianaand 33 other
statestake a different view at present does not make them irrational. Such a
drastic conclusion would be inconsistent with the underlying premises of a
responsible, functioning democracy. Schuette, 134 S. Ct. at 1637.
Second, Louisiana placed its marriage definition in the state constitution to
ensure that a change as profound as altering the definition of marriage would occur
only through wide social consensus. Def. MSJ 17-20. Windsor itself recognized that
states act rationallyindeed, wiselyin doing so. With respect to a far-reaching
matter like same-sex marriage, Windsor emphasized that [t]he dynamics of state
government in the federal system are to allow the formation of consensus. 133 S.
Ct. at 2692-93; see also id. at 2689 (noting that New York adopted same-sex
marriage only [a]fter a statewide deliberative process that enable its citizens to
discuss and weigh arguments for and against same-sex marriage). Windsor did not
establish a one-way ratchet that allows New York citizens to reach one consensus
on same-sex marriage, but denies Louisiana citizens the right to reach another.
Both states decisions were grounded on the communitys considered perspective on
the historical roots of the institution of marriage, and both were without doubt a
proper exercise of sovereign authority within our federal system. Id. To
invalidate the decision of Louisianas citizens on such a profound matter would be

based on fear that it would become itself a source of resentments and hostilities, and
[w]hether those adverse results would follow is, and should be, the subject of debate).

18
demeaning to the democratic process. Schuette, 134 S. Ct. at 1637.
***
In sum, Louisianas marriage laws trigger rational basis review, not heightened
scrutiny, under binding precedent that Windsor reaffirmed. Because Louisianas
laws rationally further important state interests in (1) linking children with intact
families formed by their biological parents, and (2) ensuring that a profound
alteration to the definition of marriage occurs only through wide social consensus,
the Court should reject plaintiffs equal protection claims.
III. LOUISIANAS MARRIAGE LAWS SATISFY THE DUE PROCESS CLAUSE.
Plaintiffs also claim that Louisianas marriage laws burden their fundamental
right to marry, Pl. MSJ 17-19, and their fundamental right to parental authority,
id. at 20. These claims founder on the settled rule that [t]o establish a substantive
due process violation, a plaintiff must first both carefully describe that right and
establish it as deeply rooted in this Nations history and tradition. Malagon de
Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (quoting Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997)) (quotes omitted); see Def. MSJ 20-24.
11

First, a careful description of the asserted right must include the fact that,

11
Plaintiffs claimed right to parental authority is subject to the same Glucksberg
standard as the claimed right to marry. See Troxel v. Granville, 530 U.S. 57, 65 (2000)
(relying on Glucksberg). Plaintiffs also assert a right to remain married, Pl. MSJ 19, but
the only case they cite purporting to recognize such a right is the recent decision in
Obergefell v. Wymyslo, 962 F.Supp.2d 968, 979 (S.D. Ohio 2013). Obergefell incorrectly
created this right from Lawrence v. Texas, which expressly disclaimed it was saying
anything about whether the government must give formal recognition to any relationship
that homosexual persons may enter. 539 U.S. at 578. Furthermore, the right to remain
married, as asserted here, appears identical to a right to interstate recognition of
marriage, which finds no support in the Constitution. See Def. MSJ 7-11.

19
here, it involves the right to marry someone of the same sex. See Glucksberg, 521
U.S. at 722 (noting the Courts tradition of carefully formulating the interest at
stake in substantive-due-process cases).
12
Plaintiffs cannot simply invoke a
generalized right to marry; they must be more precise. See id. (rejecting right to
die as insufficiently precise, and instead describing asserted right as the right to
commit suicide which itself includes assistance in doing so).
13
Relying on a generic
right to marry proves too much: no one would say, for instance, that a state
burdens the right to marry by not allowing someone to wed her first cousin. In
that hypothetical case, a careful description of the asserted right would include
the consanguinity of the proposed spouse. Just so here: the right plaintiffs seek is
not simply to marry but to marry someone of the same sex. The right has not been
carefully described if the description omits that essential feature. Windsor
confirmed this: 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. 133 S. Ct. at 2689 (emphasis added).
Second, Windsor also forecloses the argument that a right to same-sex marriage
is objectively, deeply rooted in our traditions. Windsor observed that New Yorks

12
See also, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (before
break[ing] new ground in substantive due process, Court must focus on the allegations in
the complaint to determine how petitioner describes the constitutional right at stake)
13
See also, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (rejecting freedom from physical
restraint, and describing right as the alleged right of a child who has no available parent,
close relative, or legal guardian, and for whom the government is responsible, to be placed
in the custody of a willing-and-able private custodian rather than of a government-operated
or government-selected child-care institution); Collins, 503 U.S. at 125 (rejecting due
process right to have employers provide employees with a safe working environment as
insufficiently similar to cases recognizing due process right to have state take care of those
who have already been deprived of their liberty).

20
recognition and adoption of same-sex marriage involved a new perspective, a new
insight, remarking 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 a 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.

133 S. Ct. at 2689. Given that fact, the right to enter into a same-sex marriage
cannot be one deeply rooted in our Nations history and tradition. Glucksberg, 521
U.S. at 720-21; see also Hernandez, 855 N.E.2d at 9 (The right to marry someone of
the same sex is not deeply rooted; it has not even been asserted until relatively
recent times.). That does not disparage same-sex couples who wish to marry. It
merely says courts should not place this brand new development outside the arena
of public debate and legislative action by decreeing it a fundamental right. Id. at
720 (quoting Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).
Plaintiffs rely on right to marry cases such as Zablocki, Turner, and Loving, Pl.
MSJ 17-18, but those cases do not suggest anything like a right to marry someone of
the same sex. They stand for the proposition that states burden the right to marry
by, for instance: (1) barring marriage to people who shirk child support obligations
(Zablocki v. Redhail, 434 U.S. 374, 385-87 (1978)); (2) barring marriages by
prisoners not serving a life sentence (Turner v. Safely, 482 U.S. 78, 95-98 (1987));
and (3) barring marriage based on invidious racial classifications (Loving, 388 U.S.
at 11). Obviously, the right to marry recognized in these cases was shaped by their
context. See, e.g., Collins, 503 U.S. at 125 (in defining substantive due-process

21
rights, courts must focus on the allegations in the complaint to determine how
petitioner describes the constitutional right at stake). But none of those cases
purport to constitutionalize state marriage regulation or disrupt the vast bulk of
domestic relations law. See, e.g., Zablocki, 434 U.S. at 386 (By reaffirming the
fundamental character of the right to marry, we do not mean to suggest that every
state regulation which relates in any way to the incidents of or prerequisites for
marriage must be subjected to rigorous scrutiny.).
14
No one argues, for instance,
that these decisions establish a right to marry without a ceremony or the right to
marry ones first cousin. States may, and do, differ on these matters. See, e.g.,
Windsor, 133 S. Ct. at 2691-92 (noting that most States permit first cousins to
marry, but a handful prohibit the practice) (citations omitted).
In the same way, none of these cases purport to establish a right to marry
someone of the same sex. Loving, in particular, could not have done so: a mere five
years after Loving, the Supreme Court summarily rejected for want of a
substantial federal question the claim that the Constitution requires a state to
recognize same-sex marriage. Baker v. Nelson, 409 U.S. 810 (1972). But if any of
these cases established a right to same-sex marriage, surely Windsor would have
said so. To the contrary, Windsor said that marriage between a man and a woman
no doubt had been thought of by most people as essential to the very definition of

14
In light of that disclaimer, it is incorrect to say that cases like Zablocki recognized an
unembellished right to marry. Latta, 2014 WL 1909999, at *12. While the right recognized
by the Supreme Courts cases transcends ones race, confinement to prison, or ability to
support children, id. at *13, no case says the right transcends the sex of the proposed
spouse. Windsor confirmed the opposite by observing that the man-woman aspect of
marriage was historically considered as essential to the very definition of [marriage].
133 S. Ct. at 2689.

22
that term and to its role and function throughout the history of civilization. 133 S.
Ct. at 2689. The right to marry cases plaintiffs cite have said similar things about
marriage. Zablocki, for example, said the right involves the decision to marry and
raise a child in a traditional family setting and the right to procreate. 434 U.S. at
386.
15
These statements in Windsor, Zablocki, and other cases do not mean that the
Constitution contains its own definition of marriage. But they foreclose the notion
necessary to plaintiffs due process claimsthat a right to same-sex marriage is
deeply rooted in our Nations history and tradition. Glucksberg, 521 U.S. at 720.
Finally, plaintiffs rely on right to privacy cases. Pl. MSJ 17-18 (citing Planned
Parenthood of Pa. v. Casey, 505 U.S. 833, 851 (1992); Griswold v. Connecticut, 381
U.S. 479, 486 (1965); Lawrence v. Texas, 539 U.S. 558, 578 (2003)). Plaintiffs over-
read these decisions, which only protect certain private choices about sex and
procreation. See, e.g., Lawrence, 539 U.S. at 565 (describing Griswold as addressing
the right to make certain decisions regarding sexual conduct). But they do not
establish a right to compel official recognition of relationships formed as a result of
those private choices.
16
Lawrencethe case closest to plaintiffs claimsexplicitly
noted this limitation. While recognizing that a state could not punish consensual

15
See also, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)
([m]arriage and procreation are fundamental to the very existence and survival of the
race); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (due process includes right to marry,
establish a home and bring up children); Maynard v. Hill, 125 U.S. 190, 211 (1888)
(marriage is an institution, in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society, without which there would
be neither civilization nor progress).
16
See, e.g., Hernandez, 855 N.E.2d at 10 (Plaintiffs here do not, as the petitioners in
Lawrence did, seek protection against state intrusion on intimate, private activity. They
seek from the courts access to a state-conferred benefit that the Legislature has rationally
limited to opposite-sex couples.).

23
same-sex relations, Lawrence underscored that it d[id] not involve whether the
government must give formal recognition to any relationship that homosexual
persons may enter. 539 U.S. at 578; see also id. at 567 (observing that the Texas
law at issue seek[s] to control a personal relationship that, whether or not entitled
to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals) (emphasis added). Plaintiffs rely heavily on Lawrence,
Pl. MSJ 18, but Lawrence disclaims the reading plaintiffs would impose on it
namely, that the sexual privacy it protects compels recognition of same-sex
marriage. Lawrence does no such thing.
17

CONCLUSION
The Court should (1) deny plaintiffs motion for partial summary judgment (Doc.
86), and (2) grant defendants motion for partial summary judgment and motion to
dismiss (Doc. 84).
s/ S. Kyle Duncan
P.O. Box 94005
Phone: (202) 714-9492
Fax: (225) 326-6098

17
A district court recently announced that Lawrence unequivocally cements marriage as
among the constitutionally protected liberties shared by homosexual and heterosexual
persons alike. Latta, 2014 WL 1909999, at *13. That is wrong. Lawrence unequivocally
disclaimed that it was saying anything about whether the government must give formal
recognition to any relationship that homosexual persons may enter. 539 U.S. at 578.

24


/s S. Kyle Duncan
S. Kyle Duncan
TABLE OF CONTENTS

Introduction .................................................................................................................... 1

Argument ........................................................................................................................ 2

I. Plaintiffs would nullify Louisianas authority to define marriage. ................... 2
II. Louisianas marriage laws satisfy the Equal Protection Clause. ...................... 6

A. Sexual orientation does not trigger heightened scrutiny. ............................ 6

1. Windsor reaffirms binding precedent that applies rational basis
review to sexual-orientation classifications. ............................................ 6

longstanding conflicts-of-law rules. .......................................................... 9

3. Binding precedent forecloses plaintiffs suspect-class argument. ........ 10

B. Louisianas marriage laws do not discriminate based on sex. ................... 11

C. Louisianas marriage laws satisfy rational basis review. ........................... 15

III. Louisianas marriage laws satisfy the Due Process Clause. ......................... 18

Conclusion ..................................................................................................................... 23


2

Cases
Adar v. Smith,
639 F.3d 146 (5th Cir. 2011) ..................................................................................... 1

Baker v. Gen. Motors Corp.,
522 U.S. 222 (1998) ................................................................................................... 3

Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................................. 21

Baker v. State,
744 A.2d 864 (Vt. 1999) ........................................................................................... 10

Bishop v. United States ex rel. Holder,
962 F.Supp.2d 1252 (N.D. Okla. 2014) ............................................................. 12, 13

Bloom v. Willis,
60 So.2d 415 (La. 1952) ............................................................................................. 9

Bond v. United States,
131 S. Ct. 2355 (2011) ............................................................................................... 4

Brinson v. Brinson,
96 So.2d 653 (La. 1957) ............................................................................................. 9

Chivers v. Couch Motor Lines, Inc.,
159 So.2d 544 (La. App. 3 Cir. 1964) ...................................................................... 10

City of Cleburne v. Cleburne Living Ctr., Inc.,
472 U.S. 432 (1985) ................................................................................................... 8

Collins v. City of Harker Heights,
503 U.S. 115 (1992) ........................................................................................... 19, 20

Craig v. Boren,
429 U.S. 190 (1976) ................................................................................................. 13

Doe v. Jindal,
851 F.Supp.2d 995 (E.D. La. 2012) ......................................................................... 15

Dred Scott v. Sandford,
60 U.S. 393 (1856) ..................................................................................................... 6
3

Fritsche v. Vermilion Parish Hosp. Serv. Dist. No. 2,
2004-1192 (La. App. 3 Cir. 2/2/05); 893 So.2d 935 ................................................. 10

Frontiero v. Richardson,
411 U.S. 677 (1973) ................................................................................................. 13

2004-2477 (La. 1/19/05); 893 So.2d 715 ............................................................ 10, 16

Ghassemi v. Ghassemi,
2007-1927 (La. App. 1 Cir. 10/15/08); 998 So.2d 731 ......................................... 9, 10

Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................................................................. 22

Heller v. Doe,
509 U.S. 312 (1993) ................................................................................................. 16

855 N.E.2d 1 (N.Y. 2006) ................................................................................ passim

In re Opinions of the Justices,
802 N.E.2d 565 (Mass. 2004) .................................................................................. 10

Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) ............................................................................... 7, 11

Kirchberg v. Feenstra,
450 U.S. 455 (1981) ................................................................................................. 12

Latta v. Otter,
__ F.Supp.2d __, 2014 WL 1909999 (D. Idaho May 13, 2014) ................... 14, 21, 23

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................... 16, 18, 22, 23

Louisville Gas & Elec. v. Coleman,
277 U.S. 32 (1928) ..................................................................................................... 7

Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................ 5-6, 13, 14, 20, 21

4
Mahone v. Addicks Utility Dist.,
836 F.2d 921 (5th Cir. 1988) ..................................................................................... 8

Maynard v. Hill,
125 U.S. 190 (1888) ................................................................................................. 22

Meyer v. Nebraska,
262 U.S. 390 (1923) ................................................................................................. 22

462 F.3d 498 (5th Cir. 2006) ................................................................................... 18

Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ............................................................................................. 9, 13

Moore v. East Cleveland,
431 U.S. 494 (1977) ................................................................................................. 20

Nguyen v. I.N.S.,
533 U.S. 53 (2001) ................................................................................................... 16

Obergefell v. Wymyslo,
962 F.Supp.2d 968 (S.D. Ohio 2013) ...................................................................... 18

Personnel Admin. of Mass. v. Feeney,
442 U.S. 226 (1979) ................................................................................................. 12

Planned Parenthood of Pa. v. Casey,
505 U.S. 833 (1992) ................................................................................................. 22

Reed v. Reed,
404 U.S. 71 (1971) ................................................................................................... 12

Reno v. Flores,
507 U.S. 292 (1993) ................................................................................................. 19

Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,
490 U.S. 477 (1989) ................................................................................................... 7

Romer v. Evans,
517 U.S. 620 (1996) ......................................................................................... 7, 8, 11

Schuette v. BAMN,
134 S. Ct. 1623 (2014) ...................................................................... 1, 3, 4, 16-17, 18
5

Sevcik v. Sandoval,
911 F.Supp.2d 996 (D. Nev. 2012) .................................................................... 13, 14

Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) ................................................................................................. 22

Stanton v. Stanton,
421 U.S. 7 (1975) .................................................................................................... 13

740 F.3d 471 (9th Cir. 2013) ..................................................................................... 8

Succession of Caballero v. Executor,
24 La. Ann. 573 (1872) ............................................................................................ 10

Succession of Marinoni,
148 So. 888 (La. 1933) ............................................................................................... 9

Troxel v. Granville,
530 U.S. 57 (2000) ................................................................................................... 18

Turner v. Safely,
482 U.S. 78 (1987) ................................................................................................... 20

United States ex rel. Modianos v. Tuttle,
12 F.2d 927 (E.D. La. 1925) ................................................................................. 9-10

United States v. Virginia,
518 U.S. 515 (1996) ....................................................................................... 8, 12, 13

133 S. Ct. 2675 (2013) ..................................................................................... passim

Vill. of Arlington Heights v. Metropolitan Housing Devel. Corp.,
429 U.S. 252 (1977) ................................................................................................. 14

521 U.S. 702 (1997) ..................................................................................... 18, 19, 22

Wilkinson v. Wilkinson,
323 So.2d 120 (La. 1975) ......................................................................................... 15

6
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ..................................................................................... 11

434 U.S. 374 (1978) ..................................................................................... 20, 21, 22

Statutes
110 Stat. 2419 .................................................................................................. passim

28 U.S.C. 1738C ............................................................................................................ 3

LA. CIV. CODE art. 3520 ..................................................................................... 1-2, 9, 10

LA. R.S. 47:294 ................................................................................................................ 2

U.S. CONST. art. IV .......................................................................................................... 3

U.S. CONST. amend. V ..................................................................................................... 2


LA. CONST. art. XII, 15 ................................................................................................. 1

Other Authorities
IRS Revenue Ruling 2013-17 ......................................................................................... 2

Louisiana Revenue Information Bulletin No. 13-024 ................................................... 2

Merits Brief for United States in United States v. Windsor (No. 12-307) ................. 11

Restatement (2d) Conflicts of Laws 284 ................................................................... 10



Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

DEFENDANTS RESPONSE TO PLAINTIFFS STATEMENT OF
UNDISPUTED MATERIAL FACTS

Defendants submit this response to plaintiffs statement of undisputed material
facts (Doc. 86-4):
1. Admitted.
2. Admitted as to all plaintiff couples (2a-2f).
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted to the extent that Louisiana Revenue Information Bulletin No.
13-024 states that, pursuant to Louisiana Constitution article XII, 15,
the Louisiana Department of Revenue shall not recognize same-sex

2
marriages when determining the filing status of Louisiana taxpayers,
regardless of the taxpayers federal filing status. However, it is inaccurate
to state that the Louisiana Department of Revenue will not follow IRS
Revenue Ruling 2013-17. The IRS ruling applies only to the federal
government and does not purport to govern Louisiana tax policy. See IRS
Rev. Rul. 2013-17, at 1 (asking [w]hether, for Federal tax purposes, the
[IRS] recognizes a marriage of same-sex individuals validly entered into in
a state whose laws authorize the marriage of two individuals of the same
sex even if the spouses are domiciled does not recognize the validity of
same-sex marriages) (emphasis added).
10. Admitted, with the exception of the statement that plaintiffs filed their
2012 Louisiana tax return [i]n accordance with Louisiana Revised
Statute 47:294. That statute must be interpreted in conformity with
Louisiana Constitution article XII, 15. Consequently, it cannot validly
require the Louisiana Department of Revenue to recognize same-sex
marriages for purposes of Louisiana tax law.
11. Admitted.
12. Denied as written. Louisiana Revised Statute 47:294 must be interpreted
in conformity with Louisiana Constitution article XII, 15. Consequently,
it cannot validly require the Louisiana Department of Revenue to
recognize same-sex marriages for purposes of Louisiana tax law.
13. Admitted.

3
14. Defendants lack sufficient knowledge to admit or deny this statement.

s/ S. Kyle Duncan
P.O. Box 94005
Phone: (202) 714-9492
Fax: (225) 326-6098


4

/s S. Kyle Duncan
S. Kyle Duncan




Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

DEFENDANTS MOTION FOR LEAVE TO FILE REPLY BRIEF
Defendants move for leave to file a Reply Brief in support of their motion for
partial summary judgment and motion to dismiss (Doc. 84). Defendants reply brief
complies with the 10-page limit in Local Rule 7.7 and the Courts scheduling order
(Doc. 75), and, further, is limited to responding to arguments raised in plaintiffs
opposition (Doc. 100). Finally, filing of this brief would be timely under the Courts
scheduling order, which provided that [a]ny replies are due by Monday, June 2,
2014. (Doc. 75 at 1). Counsel for plaintiffs does not oppose this motion.
s/ S. Kyle Duncan
P.O. Box 94005
Phone: (202) 714-9492
Fax: (225) 326-6098


2


I hereby certify that on June 2, 2014, I electronically filed the foregoing with the

/s S. Kyle Duncan
S. Kyle Duncan



Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

ORDER
Having considered Defendants Motion for Leave to File Reply Brief, it is
ORDERED that the motion is GRANTED.
Entered this ____ day of ___________, 2014, in New Orleans, Louisiana.

________________________________________
UNITED STATES DISTRICT JUDGE



Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

DEFENDANTS REPLY BRIEF IN SUPPORT OF
PARTIAL SUMMARY JUDGMENT AND DISMISSAL

Plaintiffs opposition identifies no material fact disputes. See Doc. 100-5, 1-7.
1

The Court may therefore resolve as a matter of law whether Louisianas refusal to
recognize plaintiffs same-sex marriages violates the Fourteenth Amendment.
Defendants respectfully ask the Court to grant their motion for partial summary
To cut to the chase: if plaintiffs are right that states are constitutionally
compelled to recognize same-sex marriage, Windsor makes no sense. See Def. MSJ
(Doc. 84-1) 4-7; Def. Opp. (Doc. 102-1) 2-6 (discussing United States v. Windsor, 133
S. Ct. 2675 (2013)). Windsors nine-paragraph discussion of states historical and

1
Any disagreements in plaintiffs counter-statement do not pertain to material facts.
Because Louisiana law is clear, it is immaterial that plaintiffs have no independent
knowledge of defendants understanding of Louisiana law. Doc. 100-5, 9-11. Further,
despite plaintiffs response (see id. 8), the parties do not disagree about the contractual
remedies available to same-sex couples; defendants agree that Louisiana law provides no
mechanism to contract for custody of a child. Pl. Opp. (Doc. 100) 14.
2
essential authority to define the marital relation, id. at 2692, was wasted ink. Its
praise of New Yorks statewide deliberative process that enabled its citizens to
discuss and weigh arguments for and against same-sex marriage, id. at 2689, was
window-dressing. Accepting plaintiffs claims would effectively overrule Windsor.
A. Windsor reaffirmed states authority to define marriage.
Plaintiffs respond that Windsor did not authorize states to violate the
Fourteenth Amendment. Pl. Opp. 20. No one says it did. The point is that Windsor
struck down DOMA because the statesnot the federal governmentdecide
whether to recognize same-sex marriage. This does not create a domestic relations
exception to the Fourteenth Amendment, Pl. Opp. 19, but simply recognizes that
defining marriage falls within the States broader authority to regulate the subject
of domestic relations. 133 S. Ct. at 2691.
Plaintiffs candidly assert that the Constitution establish[es] a one-way ratchet
allowing states to recognize same-sex marriage but denying them authority not to.
Pl. Opp. 20. But that argument ignores Windsors respect for the responsibility of
state citizens to discuss and weigh arguments for and against same-sex marriage.
133 S. Ct. at 2692, and it ignores the axiom that [i]n the search for enlightened
public policy, individual States and communities are free to experiment with a
variety of approaches to public issues. EXEC. ORDER NO. 12612, 52 FED. REG. 41685,
2(f) (Oct. 26, 1987) (Pres. Reagan).
B. Plaintiffs claims defy the Full Faith and Credit Clause.
Plaintiffs also miss the relevance of the Full Faith and Credit Clause (FFC). The
point is not that FFC trumps the Fourteenth Amendment, see Pl. Opp. 22 (asserting
3
that the amendment controls in any conflict with FFC), but rather that
plaintiffs claims are functionally identical to the claim that Louisiana must give
full faith and credit to same-sex marriages. (Indeed, the Robicheaux plaintiffs raise
an FFC claim, see Def. MSJ 10). It is settled, however, that FFC does not compel
states to recognize out-of-state marriages. Def. MSJ 7-10.
While accepting this principle as not disputed, Pl. Opp. 22, plaintiffs demand
additional warrant for Louisianas marriage policy. But Windsor itself explained
why stateswho have a rightful and legitimate concern in the marital status of
persons domiciled within [their] borders, 133 S. Ct. at 2691may reasonably
decide not to recognize same-sex marriage. This decision is a far-reaching legal
acknowledgment, requiring the communitys considered perspective, and
demanding formation of consensus among citizens. Id. at 2692-93. Plaintiffs
reduce Louisianas own decision to arbitrarily target[ing] a group for
discrimination, Pl. Opp. 22, but Windsor called it a proper exercise of sovereign
authority within our federal system. 133 S. Ct. at 2692.
2

2
Moreover, DOMA section 2 is not an affirmative defense, Pl. Opp. 22-23, but simply
confirms that states are not compel[led] to substitute the statutes or other states for its
own statutes dealing with a subject matter concerning which it is competent to legislate.
Def. MSJ 10 (quoting Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Even
assuming section 2 is an affirmative defense, however, defendants have not waived it
because (1) they generally denied that FFC compels recognition of same-sex marriages (see
Doc. 80 62); and (2) they raised section 2 soon enough not to prejudice plaintiffs. See, e.g.,
Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (no waiver if defendant
raised the issue at a pragmatically sufficient time and [the plaintiff] was not prejudiced in
its ability to response) (quotes omitted).
4
II. LOUISIANAS MARRIAGE LAWS SATISFY EQUAL PROTECTION.
A. Binding precedent requires rational-basis review.
Louisianas laws trigger rational-basis review under binding precedent. Def.
MSJ 11-12; Def. Opp. 6-11. The doctrinal evolution plaintiffs point to in Romer,
Lawrence, and Windsor (Pl. Opp. 5) fails to support heightened scrutiny: Windsor
applied the same rational-basis review in Romer, Def. Opp. 7-8, and Lawrence was
not an equal protection case. The only post-Windsor development plaintiffs citethe
SmithKline decision, Pl. Opp. 4-5 n.6misreads Windsor and is under a sua sponte
en banc call. Id. at 8 (discussing SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471 (9th Cir. 2013)). Finally, plaintiffs are wrong that, [l]ike DOMA,
Louisiana laws create two contradictory marriage regimes within the same State.
Pl. Opp. 4. DOMA usurped the states domestic relations authority, while Louisiana
exercised that authority. So even assuming Windsor applied something north of
rational-basis to a federal marriage definition, there would be no warrant for
applying it to a state definition.
3

B. Louisianas marriage laws further critical government interests.
Louisianas marriage laws further two critical government interests. First, a
primary purpose of marriage is to link children with an intact family formed by
their biological parents. Def. Opp. 15. Thus it is rational to define marriage as a
man-woman union because it remains true that the vast majority of children are
born as a result of a sexual relationship between a man and a woman. Hernandez

3
Plaintiffs initially urged heightened scrutiny based on sex discrimination, Pl. MSJ (Doc.
86-1) 15, but omit the argument in their opposition. In any event, Louisianas marriage
laws do not discriminate on the basis of sex. Def. Opp. 11-14.
5
v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006). Second, Louisiana constitutionalized its
definition to ensure that a change as profound as altering the definition of
marriage would occur only through wide social consensus. Def. Opp. 17. That
decision was rational because enlarging the historic definition is a far-reaching
step with substantial societal impact that demands citizen consensus. Windsor,
133 S. Ct. at 2692, 2693.
Plaintiffs dismiss these rationales as specious. Pl. Opp. 1. But their arguments
come nowhere near to showing that Louisianas laws are so unrelated to the
achieve of any combination of legitimate purposes that [the Court] can only
conclude [Louisianas] actions were irrational. Doe v. Jindal, 851 F.Supp.2d 995,
1005-06 (E.D. La. 2012) (quotes omitted).
4

1. Louisianas laws link children with their biological parents.
Primarily, plaintiffs claim Louisianas marriage laws are irrational because
defendants do not explain how denying recognition to same-sex marriages has any
effect on heterosexuals whatsoever. Pl. Opp. 8. They say Louisiana must prove that
recognizing same-sex marriage will influence whether heterosexual couples will
marry and, conversely, that forbidding it will increase the number of couples

4
Oddly, plaintiffs assert that [d]efendants offer no evidence to support [Louisiana] laws
beyond [defendants] three affidavits. Pl. Opp. 1. But the Civil Code articles and
commentary set forth the objectives of Louisiana marriage and family law, Def. MSJ 12-17,
and the Louisiana Supreme Court has exhaustively interpreted the legislative history of
the 2004 marriage amendment. Forum for Equality PAC v. McKeithen, 2004-2477, pp. 14-
32 (La. 1/19/05); 893 So.2d 715, 725-37. This is more than enough to sustain summary
judgment, particularly under rational-basis. See Heller v. Doe, 509 U.S. 312, 320 (1993) ([a]
State has no obligation to produce evidence to sustain the rationality of a statutory
classification, but instead the burden is on the one attacking the legislative arrangement
to negative every conceivable basis which might support it) (quotes omitted).
6
choosing to enter into opposite-sex marriages. Id. at 8-9 (quoting De Leon v. Perry,
935 F.Supp.2d 632, 653 (W.D. Tex. 2014); Goodridge v. Dept of Pub. Health, 798
N.E.2d 941, 963 (Mass. 2003)). Plaintiffs are wrong. They would require Louisiana
not only to prove a negative, but to predict the future. No level of scrutiny requires
the power of prophecycertainly not rational basis, in which a legislative choice
may be based on rational speculation unsupported by evidence or empirical data.
F.C.C. v. Beach Comm., Inc., 508 U.S. 307, 315 (1993).
5

Predicting the social effects of redefining marriage is reserved to the democratic
process. Windsor said so. Unlike plaintiffs, Windsor reposed faith in the wisdom of
citizens to discuss and weigh arguments for and against same-sex marriage. 133
S. Ct. at 2689. Unlike plaintiffs, Windsor acknowledged that a states citizens
understand[ ] that marriage is more than a routine classification whose shape has
substantial societal impact in the daily lives and customs of its people. Id. at
2692, 2693. And, unlike plaintiffs, Windsor understood thatin a nation where
people disagree on this profound issuealtering the longstanding definition of
marriage demands a genuine consensus of a states citizens. Id. at 2692.
Plaintiffs also claim Louisianas man-woman definition does not rationally link
children to biological parents because same-sex couples can have children through
adoption or assistive reproductive technology. Pl. Opp. 10; see also id. at 2 n.3 (two
plaintiffs used the method of conception known as reciprocal in vitro

5
See also Planned Parenthood v. Abbott, __ F.3d __, 2014 WL 1257965 at *7 (5th Cir.
Mar. 27, 2014) (Because [rational basis] does not lend itself to an evidentiary inquiry in
court, the state is not required to prove that the objective of the law would be fulfilled.)
7
fertilization). Plaintiffs are again mistaken. First, they cannot deny that the vast
majority of children are born from the union of opposite-sex couples. Hernandez,
855 N.E.2d at 7. Merely because Louisianas classification does not include every
other adoptive or reproductive scenario does not make it irrational. LeClerc v. Webb,
419 F.3d 405, 420 (5th Cir. 2005) (rational-basis review seek[s] only the assurance
that the classification at issue bears some fair relationship to a legitimate public
purpose) (quotes omitted). Second, plaintiffs overlook that Louisiana has
compelling interests in regulating adoption and reproductive technology. Louisiana
regulates both subjects to reinforce its marriage and family laws.
6
Plaintiffs would
brand Louisianas family law irrational simply because it does not embrace every
new iteration of reproductive technology.
7
That cannot be right, however, given
states authority to regulate the subject of domestic relations with respect to the
protection of offspring. Windsor, 133 S. Ct. at 2691 (quotes omitted).
2. Louisianas laws ensure consensus-based social change.
Instead of confronting Louisianas social consensus argumentwhich comes
directly from Windsor and Schuette (Def. MSJ 17-20; Def. Opp. 3-5, 17-18)
plaintiffs spend five pages discussing desegregation decisions from the 1960s. Pl.

6
See LA. CHILD. CODE art. 1221 (allowing joint private adoptions only by a married
couple); LA. R.S. 9:130 (IVF patients may renounce parental rights to embryo only in favor
of another married couple willing and able to receive the [embryo]); LA. CIV. CODE art.
188 (husband may not disavow a child born to his wife as a result of an assisted conception
to which he consented).
7
For instance, regarding reciprocal in vitro fertilization (Pl. Opp. 2 n.3), Louisiana
would recognize the maternity only of the woman who bore the child, not the woman who
donated her egg. LA. CIV. CODE art. 184 cmt. a (the mother of a child is the woman who
gives birth to the child); see also KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK at 388
(West 2013) (under article 184, in the case of donated eggs, the birth mother is the legal
mother even though the child has the DNA of another person).
8
Opp. 15-19. They assert that Louisiana, by retaining its marriage definition, has
determined to actively work against Plaintiffs in their struggle for equality, just
[a]s it did during desegregation. Id. at 18. That is rhetoric, not argument.
Important as they were, the desegregation cases can be summarized in one
sentence: The equal protection clause of the fourteenth amendment prevents any
invidious discrimination on the basis of race. Lee v. Macon Cnty. Bd. of Ed., 448
F.2d 746, 753 (5th Cir. 1971) (citation omitted). But they do provide a helpful
contrast with this case. The desegregation cases involved strict scrutiny; this case
involves rational-basis review. The desegregation cases involved orchestrated
resistance to federal authority accompanied by demonstrations, picketing, stone-
throwing, and turmoil, (Pl. Opp. 17 (quoting Bush v. Orleans Parish Sch. Bd., 308
F.2d 491, 494 (5th Cir. 1962)); this case involves a states citizens, peacefully voting.
Finally, the desegregation cases involved racial discrimination that violated the
clear and central purpose of the Fourteenth Amendment, Loving v. Virginia, 388
U.S. 1, 10 (1967); this case involves an aspect of marriage that until recent years
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. The desegregation cases utterly fail to support plaintiffs claims.
III. LOUISIANAS MARRIAGE LAWS SATISFY DUE PROCESS.
Plaintiffs due process claims fail because a right to marry someone of the same
sex is not deeply rooted in this Nations history and tradition. Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997); Def. MSJ 20-24; Def. Opp. 18-23. Plaintiffs
mistakenly say this right does not break new ground, Pl. Opp. 6, but Windsor said
9
New Yorks adoption of same-sex marriage in 2011 involved a new perspective, a
new insight. 133 S. Ct. at 2689. No state recognized the right until 2003, and two-
thirds of the states do not recognize it today. Def. MSJ 1-2. The right therefore
cannot be so rooted in the traditions and conscience of our people as to be ranked
as fundamental. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
A careful description of the asserted right must include the fact that it involves
marrying a same-sex partner. Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505
(5th Cir. 2006) (right must be carefully describe[d]). But, far from optional, the
man-woman feature of marriage was thought essential to the very definition and
to its role and function throughout the history of civilization. Windsor, 133 S. Ct. at
2689 (emphasis added). Plaintiffs must be more precise than invoking a generic
right to marry. Glucksberg, 520 U.S. at 722; Def. Opp. 19.
Plaintiffs respond that [a]ll individuals share in fundamental rights. Pl. Opp.
6. No one doubts that. But there is a tradition of carefully formulating the interest
at stake in substantive-due-process cases to discern whether a fundamental right
is asserted. Glucksberg, 520 U.S. at 722. Here, plaintiffs have not. Nor does that
analysis repeat[ ] the mistake of Bowers by limiting the right too narrowly. Pl.
Opp. 6; Bowers v. Hardwick, 478 U.S. 186 (1986). The same case that corrected
Bowers said it d[id] not involve whether the government must give formal
recognition to any relationship that homosexual persons may enter. Lawrence v.
Texas, 539 U.S. 558, 578 (2003).
Plaintiffs and amici also rely on the Supreme Courts right to marry cases. Pl.
10
Opp. 6, 12-13; Doc. 92. But those caseswhich struck down marriage bans based on
incarceration, child support, and race, Def. Opp. 20-21do not suggest a right to
marry regardless of a spouses sex. See Zablocki v. Redhail, 434 U.S. 374, 386 (1978)
(right to marry does not impact every state regulation which relates in any way
to the incidents of or prerequisites for marriage). Only five years after Lovinga
case heavily cited by plaintiffs and other courts, Def. MSJ 23-24; Def. Opp. 5-6the
Supreme Court rejected a constitutional right to same-sex marriage. Baker v.
Nelson, 409 U.S. 810 (1972). In light of that, a right to marry someone of the same
sex cannot be deeply rooted in this Nations history and tradition. Glucksberg, 520
U.S. at 720-21 (quotes omitted).
CONCLUSION
judgment and motion to dismiss.
s/ S. Kyle Duncan
P.O. Box 94005
Phone: (202) 714-9492
Fax: (225) 326-6098
/s S. Kyle Duncan
S. Kyle Duncan, Attorney for Defendants
TABLE OF CONTENTS

Defendants Reply Brief .................................................................................................. 1

I. Plaintiffs would nullify Louisianas authority to define marriage. ................ 1
A. Windsor reaffirmed states authority to define marriage ............................. 2

B. Plaintiffs claims defy the Full Faith and Credit Clause .............................. 2

II. Louisianas marriage laws satisfy equal protection ........................................ 4

A. Binding precedent requires rational-basis review ........................................ 4

B. Louisianas marriage laws further critical government interests ............... 4

1. Louisianas laws link children with their biological parents .................. 5

2. Louisianas laws ensure consensus-based social change ........................ 7

III. Louisianas marriage laws satisfy due process ................................................ 8

Conclusion ..................................................................................................................... 10


2

Cases
Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................................. 10

Bowers v. Hardwick,
478 U.S. 186 (1986) ................................................................................................... 9

Bush v. Orleans Parish Sch. Bd.,
308 F.2d 491 (5th Cir. 1962) ..................................................................................... 8

De Leon v. Perry,
935 F.Supp.2d 632 (W.D. Tex. 2014) ........................................................................ 5

Doe v. Jindal,
851 F.Supp.2d 995 (E.D. La. 2012) ........................................................................... 5

F.C.C. v. Beach Comm., Inc.,
508 U.S. 307 (1993) ................................................................................................... 6

2004-2477 (La. 1/19/05); 893 So.2d 715 .................................................................... 5

Franchise Tax Bd. of Cal. v. Hyatt,
538 U.S. 488 (2003) ................................................................................................... 3

Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) .................................................................................... 5

Heller v. Doe,
509 U.S. 312 (1993) ................................................................................................... 5

855 N.E.2d 1 (N.Y. 2006) ...................................................................................... 4, 6

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................................... 4, 9

LeClerc v. Webb,
419 F.3d 405 (5th Cir. 2005) ..................................................................................... 7

Lee v. Macon Cnty. Bd. of Ed.,
448 F.2d 746 (5th Cir. 1971) ..................................................................................... 8
3

Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................................. 8, 10

462 F.3d 498 (5th Cir. 2006) ..................................................................................... 9

Pasco ex rel. Pasco v. Knoblauch,
566 F.3d 572 (5th Cir. 2009) ..................................................................................... 3

Planned Parenthood v. Abbott,
__ F.3d __, 2014 WL 1257965 (5th Cir. Mar. 27, 2014) ........................................... 6

Romer v. Evans,
517 U.S. 620 (1996) ................................................................................................... 4

Schuette v. BAMN,
134 S. Ct. 1623 (2014) ............................................................................................... 7

740 F.3d 471 (9th Cir. 2013) ..................................................................................... 4

Snyder v. Massachusetts,
291 U.S. 97 (1934) ..................................................................................................... 9

133 S. Ct. 2675 (2013) ..................................................................................... passim

521 U.S. 702 (1997) .............................................................................................. 8-10

434 U.S. 374 (1978) ................................................................................................. 10

Statutes
110 Stat. 2419 ........................................................................................................ 2, 4

28 U.S.C. 1738C ............................................................................................................ 3

LA. CHILD. CODE art. 1221 .............................................................................................. 7

LA. CIV. CODE art. 184 .................................................................................................... 7

4
LA. R.S. 9:130 .................................................................................................................. 7

U.S. CONST. art. IV ....................................................................................................... 2-3


LA. CONST. art. XII, 15 ................................................................................................. 5

Other Authorities
EXEC. ORDER NO. 12612, 52 FED. REG. 41685 ................................................................ 2

KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK ...................................................... 7

1159867v1
Plaintiffs
v.
Defendants
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CIVIL ACTION
NO. 13-5090 C/W14-97 &14-327
SECTION F(5)
REF: ALL CASES
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UNOPPOSED MOTION FOR LEAVE TO FILE
REPLY MEMORANDUMIN SUPPORT OF PLAINTIFFS'
MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs respectfully move the Court for leave to file a reply memorandum in
support of their Motion for Partial Summary Judgment. Plaintiffs seek leave to respond to the
arguments raised by Defendants in their opposition and respectfully submit that the
memorandum will assist the Court in its review of the issues. The parties have agreed not to
contest motions for leave to file reply memoranda regarding their cross-motions for partial
summary judgment, and this motion is thus unopposed.
WHEREFORE, Plaintiffs respectfully request that they be granted leave to file
the accompanying reply memorandum.
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1159867v1
WITTMANN L.L.C.
Telephone: (504) 581-3200
700 Camp Street
Phone: 504-524-3306
Fax: 504-529-4179
Blanchard
I hereby certify that on this 2
nd
day of June, 2014, the foregoing Motion for Leave
to File Reply Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment has
been served upon all counsel of record by the Court's CM/ECF system.
1159869v1
Plaintiffs
v.
Defendants
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CIVIL ACTION
NO. 13-5090 C/W14-97 &14-327
SECTION F(5)
REF: ALL CASES
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ORDER
Considering the Motion for Leave to File Reply Memorandum in Support of
Plaintiffs' Motion for Partial Summary Judgment, it is ORDERED that:
The Motion is GRANTED. Plaintiffs may file their reply memorandum into the
record.
New Orleans, Louisiana, this ____ day of June, 2014.
___________________________________________________

1159284v3
Plaintiffs
v.
Defendants
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CIVIL ACTION
NO. 13-5090 C/W 14-97 &14-327
SECTION F(5)
REF: ALL CASES
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PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF
Plaintiffs file this Reply Memorandum in support of their Motion for Partial Summary
Judgment. Rec. Doc. 86.
I. LAW AND ARGUMENT
In May, three more federal district courts held that state laws prohibiting the celebration
or recognition of same-sex marriages violated the Equal Protection or Due Process Clauses.
Whitewood v. Wolf, No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS 68771, at *49 (M.D. Pa. May 20,
2014) (Pennsylvania's statutory ban on same-sex marriage violated the Equal Protection and Due
Process Clauses); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 U.S. Dist. LEXIS 68171, at
*46 (D. Or. May 19, 2014) (Oregon's constitutional amendment banning same-sex marriage,
passed by voters in 2004, violated the Equal Protection Clause); Latta v. Otter, No. 1:13-cv-
00482-CWD, 2014 U.S. Dist. LEXIS 66417, at *37 (D. Idaho May 13, 2014) (Idaho's bans,
including a provision of the Idaho constitution passed by voters in 2006, violated the Equal
Protection and Due Process Clauses). Louisiana's laws barring recognition of same-sex
marriages should fare no better.
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1159284v3
A. Louisiana Must Exercise Its Power over Domestic Relations in Compliance
with the Fourteenth Amendment.
1. The Windsor Majority Expressly Disclaimed Federalism as the
Rationale for its Ruling.
Defendants rely heavily on a misinterpretation of United States v. Windsor, 133 S. Ct.
2675 (2013). Defendants argue that Plaintiffs oversimplify Windsor and that Windsor
overturned DOMA Section 3 on federalism, not equal protection grounds. Rec. Doc. 102 at 5.
The Supreme Court did not hold in Windsor that state regulation of marriage is beyond the scope
of the Fourteenth Amendment. Though the Windsor majority discussed why DOMA intruded on
states' traditional power to govern marriage, the majority rejected federalism as its rationale:
Despite these considerations, it is unnecessary to decide whether this federal
intrusion on state power is a violation of the Constitution because it disrupts the
federal balance. The State's power in defining the marital relation is of central
relevance in this case quite apart from principles of federalism.
Id. at 2692 (emphasis added). Rather, the Court's holding was grounded in equal protection and
due process: Congress's departure from its traditional reliance on state law to define marriage
suggested a "[d]iscrimination[] of an unusual character" with a purpose "to impose restrictions
and disabilities." Id. "The resulting injury and indignity" was "a deprivation of an essential part
of the liberty protected by the Fifth Amendment." Id. Justice Scalia, joined by Justice Thomas,
acknowledged in his dissent that the opinion "formally disclaimed reliance on principles of
federalism" and called it "pretense" that the majority's rationale would be limited to only the
federal government and DOMA. Id. at 2705; see also id. ("the opinion starts with seven full
pages about the traditional power of States to define domestic relationsinitially fooling many
readers into thinking that this is a federalism opinion"). Thus, to adopt the Defendants' position
that federalism, not equal protection, drove the Windsor majority, the Court would have to reject
the view of seven Supreme Court justices.
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1159284v3
2. Schuette Did Not Abrogate Prior Precedent Holding that a
Majority Vote May Not Infringe Minorities' Constitutional
Rights.
Defendants contend that Plaintiffs' call for equal protection and due process asks the
Court to "constitutionalize the issue [of whether to recognize same-sex marriages] and nullify
Louisiana's authority to decide it." Rec. Doc. 102 at 3. But Defendants' argument renders the
Fourteenth Amendment's guarantee of equal protection and fundamental liberty interests subject
to majority impulse, making it effectively meaningless.
Voter approval of the Louisiana constitutional provision does not immunize it from equal
protection and due process scrutiny. Defendants assert that it is "the responsibility of voters
not the courtsto decide the issue," Rec. Doc. 102 at 4, and cite the Supreme Court's recent
decision in Schuette v. BAMN, 134 S. Ct. 1623 (2014), for the proposition that a court should not
find a state referendum unconstitutional. Schuette does not establish a state's right to violate the
Fourteenth Amendment by majority vote. The case involved the Michigan electorate's vote to
stop affirmative action in school admissions. Id. at 1630. It did not involve state efforts to
institutionalize discrimination. Rather, Schuette stands for the "unremarkable proposition that
voters can and should be allowed to end their state's discriminatory policies." Latta, 2014 U.S.
Dist. LEXIS 66417 at *80 (emphasis added) (discussing Schuette). Schuette in no way abrogates
prior Supreme Court precedent affirming that a majority of voters cannot deprive minorities of
fundamental rights. See, e.g., Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-
37 (1964) ("[a] citizen's constitutional rights can hardly be infringed simply because a majority
of the people choose that it be"); W.Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)
("fundamental rights may not be submitted to vote; they depend on the outcome of no
elections"); see also Romer v. Evans, 517 U.S. 620 (1996) (overturning voter-approved Colorado
constitutional amendment targeting gay and lesbian individuals).
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3. Louisiana May Not Single Out Same-Sex Couples for Categorical
Nonrecognition Without Constitutional Justification.
Defendants argue that the Anti-Recognition Laws are not a discrimination of an
"unusual" character because Louisiana could decline to recognize same-sex marriages as
contrary to public policy under traditional comity rules. Rec. Doc. 102 at 9. But Louisiana must
justify its laws and public policy apart from tradition. All heterosexual couples with a valid
marriage license from another jurisdictionwhether they are in traditional marriages, common
law marriages, underage marriages, proxy marriages, first-cousin marriages, marriages between
the infertile, or any other sort of marriage arrangementenjoy a rebuttable presumption of
validity under Louisiana's doctrine of favor matrimonii. See Ghassemi v. Ghassemi, 2007-1927,
pp. 9-10 (La. App. 1 Cir. 10/15/08), 998 So. 2d 731, 738. Same-sex couples do not receive this
presumption because of the Anti-Recognition Laws enacted in 1999 and 2004. The State has not
put forward any legitimate rationale for this discrimination.
Further, the discrimination raises due process concerns. Before the laws were enacted,
the decision whether to recognize a same-sex marriage would have rested with a judge or state
official, who could weigh any competing public policy interests against the interests of the
couple and any affected children. The sole purpose of the Anti-Recognition Laws is to eliminate
this discretion. Louisiana denies the opportunity for a fair hearing to same-sex couples, and only
same-sex couples; a court that enforces these Louisiana laws is categorically bound to deny
recognition. Indeed, Defendants submitted affidavits stating that under the Anti-Recognition
Laws they have no discretion to recognize the marriage of a same-sex couple.
1
This is a
discrimination of an unusual character that violates equal protection and due process.

1
See Affidavit of Hon. Thomas A. ("Tim") Barfield, Jr., Rec. Doc. 84-4 at 8 ("the Department must abide
by the laws of the State of Louisiana, and . . . said laws expressly prohibit Louisiana courts and public
officials from recognizing for any purpose a purported marriage between persons of the same sex
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B. No Sufficient Rationale Justifies the Anti-Recognition Laws.
Defendants again offer their "natural procreat[ion]" and "social consensus"
rationales for the Anti-Recognition Laws. Rec. Doc. 102 at 15-18. Neither can survive
constitutional scrutiny, even if this Court applies rational basis review. All three of the most
recent federal district decisions reject procreation-based rationales for same-sex marriage bans.
E.g., Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (applying rational basis, holding that "any
governmental interest in responsible procreation is not advanced by denying marriage to gay and
lesbian couples"); Whitewood, 2014 U.S. Dist. LEXIS 68771, at *48 (applying heightened
scrutiny, holding that there is no relationship between Pennsylvania's same-sex ban and the
purported objectives of responsible procreation and child-rearing); Latta, 2014 U.S. Dist. LEXIS
66417, at *69-71 (applying heightened scrutiny, holding that Idaho's ban contravened Justice
Kennedy's warning that states may not ignore the welfare of children of same-sex couples). Nor
is Defendants' social-consensus rationale sufficient. Latta, 2014 U.S. Dist. LEXIS 66417, at *80
(deference to voters "has no application . . . where voters imposed a purposefully discriminatory
policy that undermines a fundamental right").
C. Plaintiffs Seek Recognition of their Fundamental Right to Marry, Not a New
Right of "Same-Sex Marriage," and Strict Scrutiny Applies.
Defendants seemingly do not dispute the existence of a fundamental right to marry but
argue that gays and lesbians have no "generalized right to marry" and that Plaintiffs seek
recognition of a new right"the right to marry someone of the same sex." Rec. Doc. 102 at 19

contracted in another jurisdiction."); Affidavit of Hon. Kathy Kliebert, Rec. Doc. 84-5 at 6-7, 9-10 ("my
department and its divisions and offices are prohibited from authorizing and/or recognizing under any
provision of the Louisiana Childrens Code or any other provision of Louisiana law the Louisiana adoption
of a child by two persons of the same sex based on their out-of-state same-sex marriage."); Affidavit of
Hon. Devin George, Rec. Doc. 84-6 at 7, 9 ("my office is prohibited from issuing a birth certificate
recognizing two persons of the same sex as the parents of a child based on their same-sex marriage
contracted in another jurisdiction.").
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(emphasis in original). Defendants' argument ignores Supreme Court precedent that establishes
an "unembellished right to marry." Latta, 2014 U.S. Dist. LEXIS 66417, at *37 ("This 'new
right' argument attempts to narrowly parse a right that the Supreme Court has framed in
remarkably broad terms.").
The right to marry is fundamental and deeply rooted. See, e.g., Meyer v. Nebraska, 262
U.S. 390, 399 (1923). The Supreme Court has repeatedly invalidated laws that infringe this right.
In Loving v. Virginia, the Court held that "the freedom to marry or not marry[] a person of
another race resides with the individual and cannot be infringed by the State." 388 U.S. 1, 12
(1967). The Court reaffirmed the right to marry in Zablocki v. Redhail, striking down a
Wisconsin law that required a resident to seek court permission to marry when the resident had
children not in his custody. 434 U.S. 374 (1978). In Turner v. Safley, recognizing the emotional
and spiritual significance of marriage and the benefits that flow from it, the Court struck down a
law restricting inmates' right to marry. 482 U.S. 78, 95-96 (1987) ("These incidents of marriage,
like the religious and personal aspects of marriage commitment, are unaffected by the fact of
confinement, or the pursuit of legitimate penological objectives.").
Like all citizens, gay and lesbian individuals enjoy the right to marry. An individual does
not forfeit fundamental rights when coming out of the closet. See Romer, 517 U.S. at 635-36;
Lawrence v. Texas, 539 U.S. 558, 574 (2003). Lawrence observed that "our laws and tradition
afford constitutional protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education." 539 U.S. at 574. The Court
concluded that "[p]ersons in a homosexual relationship may seek autonomy for these purposes,
just as heterosexual persons do." Id. In Windsor, the Court invalidated Section 3 of DOMA
because the federal government's definition of marriage as encompassing only different-sex
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relationships unconstitutionally interfered "with the equal dignity of same-sex marriages
recognized by states." 133 S. Ct. at 2693.
The Supreme Court has consistently venerated the right to marry "as opposed to a sub-
right tied to the facts of the case." Latta, 2014 U.S. Dist. LEXIS 66417, at *37. "Loving was no
more about the 'right to interracial marriage' than Turner was about the 'prisoner's right to marry'
or Zablocki was about the 'dead-beat dad's right to marry.'" Id. These cases recognized that the
fundamental right to marry extends to all citizens:
If every individual enjoys a constitutional right to marry, what is the substance of
that right for gay or lesbian individuals who cannot marry their partners of
choice? Traditional man-woman marriage is no answer, as this would suggest
that gays and lesbians can switch off their sexual orientation and choose to be
content with the universe of opposite-sex partners approved by the State.
Latta, 2014 U.S. Dist. LEXIS 66417 at *38-39. Laws that infringe on the right to marry must be
narrowly tailored to promote a legitimate governmental interest, but the Anti-Recognition Laws
are not. Louisiana's categorical refusal to recognize the Plaintiffs' valid marriages
unconstitutionally infringes their fundamental right to marry.
D. Heightened Scrutiny Applies in the Equal Protection Analysis.
Defendants claim that Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004), and Romer
v. Evans, 517 U.S. at 633, mandate that this Court apply rational basis review. Rec. Doc. 102 at
6-7. But neither case held that sexual orientation could never be subject to heightened scrutiny.
(And while both courts applied rational basis review, in both cases sexual orientation
classifications were held to be impermissible.)
Even pretermitting whether the Supreme Court applied heightened scrutiny in Windsor,
see Pls.' Mem. Opp., Rec. Doc. 100 at 3, Defendants have not addressed the indicia used to
determine whether heightened scrutiny applies: (1) whether the group has been subjected to "a
history of purposeful unequal treatment," Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976);
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1159284v3
(2) whether the group possesses a characteristic "that frequently bears no relation to ability to
perform or contribute to society," City of Cleburne, Tex v. Cleburne Living Ctr., 473 U.S. 432,
440-41 (1985); (3) whether the group exhibits "obvious, immutable, or distinguishing
characteristics that define them as a discrete group," Bowen v. Gilliard, 483 U.S. 587, 602 (1987)
(internal citation and quotation marks omitted); and (4) whether the group is "a minority or
politically powerless," id. Defendants do not argue that sexual orientation is mutable
2
or that it
bears a relationship to a person's ability to participate in society. Nor have Defendants
commented on Louisiana's history of discrimination against its gay and lesbian citizens, whose
lack of political power is underscored by the Louisiana Legislature's recent rejection of
legislation prohibiting housing discrimination based on sexual orientation and refusal to repeal
unconstitutional anti-sodomy laws. Defendants do not refute these facts. All four factors
indicate that Plaintiffs are members of a class subject to heightened scrutiny.
Finally, the laws are subject to heightened scrutiny because they discriminate on the basis
of sex. Plaintiffs' analogy to the racial classification at issue in Loving is apt. Just as the anti-
miscegenation laws discriminated on the basis of race, so too do these laws discriminate on the
basis of sex. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013) ("the court finds
that the fact of equal application to both men and women does not immunize Utah's Amendment
3 from the heightened burden of justification that the Fourteenth Amendment requires of state
laws drawn according to sex"), appeal docketed, No. 13-4178 (10th Cir.). Further, the laws are
rooted in impermissible sex stereotypes about the role of men and women within the family.
See, e.g., Amicus of Prof. Hawkins et al., Rec. Doc. 94 at 15 (arguing that "marriage is a primary

2
Defendants make a fleeting reference to "sexual preference," Rec. Doc. 102 at 14, insinuating that sexual
orientation is not an immutable characteristic but rather a changeable part of a person's identity.
Nevertheless, Defendants do not dispute this factor.
- 9 -
1159284v3
means of shaping men's identities and behaviors" because masculinity depends on a husband
being perceived as the "provider" and protector of a family). And while Defendants suggest that
the burden is on Plaintiffs to show a discriminatory motive, Rec. Doc. 102 at 14, a "plaintiff who
claims that a governmental classification explicitly based on sex violates the Equal Protection
Clause . . . does not have to show discriminatory intent." Doe ex rel. Doe v. Vermilion Parish
Sch. Bd., 421 F. App'x 366, 372 (5th Cir. 2011). If Plaintiff Jackie Brettner were a man, her
marriage to Lauren Brettner would be recognized by the State of Louisiana, and she would be
recognized as the parent of their child born during the marriage. Because of her sex, the state
refuses to recognize her marriage or her parental rights. This is sex discrimination subject to
heightened scrutiny.
II. CONCLUSION
Plaintiffs include six committed, loving couples who crossed state lines to solemnize
their commitment to one another. Louisiana's Anti-Recognition Laws effectively invalidate their
marriages when they cross the Louisiana border. The laws strip them of all incidents of marriage
and prevent them from establishing legally recognized two-parent households for their children.
Defendants have argued that that these couples can contract around the Anti-Recognition Laws,
but the undisputed facts demonstrate that is untrue. A private agreement cannot circumvent
Louisiana's adoption, birth certificate, or tax laws. Nor may a private contract alleviate the
stigma these laws place on same-sex couples and their children. See Windsor 133 S. Ct. at
2693.
Defendants have offered no rational justification for the Anti-Recognition Laws, and they
cannot survive rational basis review, let alone heightened scrutiny. These laws serve only to
institutionalize and sanction discrimination against gays and lesbians. This Court should follow
Supreme Court precedent and the reasoning of the thirteen other federal district courts who have
- 10 -
1159284v3
addressed same-sex marriage issues since Windsor. "The logic of these precedents virtually
compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they
seek the benefits and responsibilities of civil marriage." Latta, 2014 U.S. Dist. LEXIS 66417 at
*82. Thus, Plaintiffs pray that the Court grant their Motion for Partial Summary Judgment and
hold that Louisiana's Anti-Recognition Laws are unconstitutional.
WITTMANN L.L.C.
Telephone: (504) 581-3200
700 Camp Street
Phone: 504-524-3306
Fax: 504-529-4179
Blanchard
nd
day of June, 2014, the foregoing Reply
Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment has been served
upon all counsel of record by the Court's CM/ECF system.
1159869v1
Plaintiffs
v.
Defendants
*
*
*
*
*
*
*
*
*
*
*
*
*
CIVIL ACTION
NO. 13-5090 C/W14-97 &14-327
SECTION F(5)
REF: ALL CASES
*************************************** *
ORDER
Considering the Motion for Leave to File Reply Memorandum in Support of
Plaintiffs' Motion for Partial Summary Judgment, it is ORDERED that:
The Motion is GRANTED. Plaintiffs may file their reply memorandum into the
record.
New Orleans, Louisiana, this ____ day of June, 2014.
___________________________________________________

4th
1159284v3
Plaintiffs
v.
Defendants
*
*
*
*
*
*
*
*
*
*
*
*
*
CIVIL ACTION
NO. 13-5090 C/W 14-97 &14-327
SECTION F(5)
REF: ALL CASES
*************************************** *
PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF
Plaintiffs file this Reply Memorandum in support of their Motion for Partial Summary
Judgment. Rec. Doc. 86.
I. LAW AND ARGUMENT
In May, three more federal district courts held that state laws prohibiting the celebration
or recognition of same-sex marriages violated the Equal Protection or Due Process Clauses.
Whitewood v. Wolf, No. 1:13-cv-1861, 2014 U.S. Dist. LEXIS 68771, at *49 (M.D. Pa. May 20,
2014) (Pennsylvania's statutory ban on same-sex marriage violated the Equal Protection and Due
Process Clauses); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 U.S. Dist. LEXIS 68171, at
*46 (D. Or. May 19, 2014) (Oregon's constitutional amendment banning same-sex marriage,
passed by voters in 2004, violated the Equal Protection Clause); Latta v. Otter, No. 1:13-cv-
00482-CWD, 2014 U.S. Dist. LEXIS 66417, at *37 (D. Idaho May 13, 2014) (Idaho's bans,
including a provision of the Idaho constitution passed by voters in 2006, violated the Equal
Protection and Due Process Clauses). Louisiana's laws barring recognition of same-sex
marriages should fare no better.
- 2 -
1159284v3
A. Louisiana Must Exercise Its Power over Domestic Relations in Compliance
with the Fourteenth Amendment.
1. The Windsor Majority Expressly Disclaimed Federalism as the
Rationale for its Ruling.
Defendants rely heavily on a misinterpretation of United States v. Windsor, 133 S. Ct.
2675 (2013). Defendants argue that Plaintiffs oversimplify Windsor and that Windsor
overturned DOMA Section 3 on federalism, not equal protection grounds. Rec. Doc. 102 at 5.
The Supreme Court did not hold in Windsor that state regulation of marriage is beyond the scope
of the Fourteenth Amendment. Though the Windsor majority discussed why DOMA intruded on
states' traditional power to govern marriage, the majority rejected federalism as its rationale:
Despite these considerations, it is unnecessary to decide whether this federal
intrusion on state power is a violation of the Constitution because it disrupts the
federal balance. The State's power in defining the marital relation is of central
relevance in this case quite apart from principles of federalism.
Id. at 2692 (emphasis added). Rather, the Court's holding was grounded in equal protection and
due process: Congress's departure from its traditional reliance on state law to define marriage
suggested a "[d]iscrimination[] of an unusual character" with a purpose "to impose restrictions
and disabilities." Id. "The resulting injury and indignity" was "a deprivation of an essential part
of the liberty protected by the Fifth Amendment." Id. Justice Scalia, joined by Justice Thomas,
acknowledged in his dissent that the opinion "formally disclaimed reliance on principles of
federalism" and called it "pretense" that the majority's rationale would be limited to only the
federal government and DOMA. Id. at 2705; see also id. ("the opinion starts with seven full
pages about the traditional power of States to define domestic relationsinitially fooling many
readers into thinking that this is a federalism opinion"). Thus, to adopt the Defendants' position
that federalism, not equal protection, drove the Windsor majority, the Court would have to reject
the view of seven Supreme Court justices.
- 3 -
1159284v3
2. Schuette Did Not Abrogate Prior Precedent Holding that a
Majority Vote May Not Infringe Minorities' Constitutional
Rights.
Defendants contend that Plaintiffs' call for equal protection and due process asks the
Court to "constitutionalize the issue [of whether to recognize same-sex marriages] and nullify
Louisiana's authority to decide it." Rec. Doc. 102 at 3. But Defendants' argument renders the
Fourteenth Amendment's guarantee of equal protection and fundamental liberty interests subject
to majority impulse, making it effectively meaningless.
Voter approval of the Louisiana constitutional provision does not immunize it from equal
protection and due process scrutiny. Defendants assert that it is "the responsibility of voters
not the courtsto decide the issue," Rec. Doc. 102 at 4, and cite the Supreme Court's recent
decision in Schuette v. BAMN, 134 S. Ct. 1623 (2014), for the proposition that a court should not
find a state referendum unconstitutional. Schuette does not establish a state's right to violate the
Fourteenth Amendment by majority vote. The case involved the Michigan electorate's vote to
stop affirmative action in school admissions. Id. at 1630. It did not involve state efforts to
institutionalize discrimination. Rather, Schuette stands for the "unremarkable proposition that
voters can and should be allowed to end their state's discriminatory policies." Latta, 2014 U.S.
Dist. LEXIS 66417 at *80 (emphasis added) (discussing Schuette). Schuette in no way abrogates
prior Supreme Court precedent affirming that a majority of voters cannot deprive minorities of
fundamental rights. See, e.g., Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-
37 (1964) ("[a] citizen's constitutional rights can hardly be infringed simply because a majority
of the people choose that it be"); W.Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)
("fundamental rights may not be submitted to vote; they depend on the outcome of no
elections"); see also Romer v. Evans, 517 U.S. 620 (1996) (overturning voter-approved Colorado
constitutional amendment targeting gay and lesbian individuals).
- 4 -
1159284v3
3. Louisiana May Not Single Out Same-Sex Couples for Categorical
Nonrecognition Without Constitutional Justification.
Defendants argue that the Anti-Recognition Laws are not a discrimination of an
"unusual" character because Louisiana could decline to recognize same-sex marriages as
contrary to public policy under traditional comity rules. Rec. Doc. 102 at 9. But Louisiana must
justify its laws and public policy apart from tradition. All heterosexual couples with a valid
marriage license from another jurisdictionwhether they are in traditional marriages, common
law marriages, underage marriages, proxy marriages, first-cousin marriages, marriages between
the infertile, or any other sort of marriage arrangementenjoy a rebuttable presumption of
validity under Louisiana's doctrine of favor matrimonii. See Ghassemi v. Ghassemi, 2007-1927,
pp. 9-10 (La. App. 1 Cir. 10/15/08), 998 So. 2d 731, 738. Same-sex couples do not receive this
presumption because of the Anti-Recognition Laws enacted in 1999 and 2004. The State has not
put forward any legitimate rationale for this discrimination.
Further, the discrimination raises due process concerns. Before the laws were enacted,
the decision whether to recognize a same-sex marriage would have rested with a judge or state
official, who could weigh any competing public policy interests against the interests of the
couple and any affected children. The sole purpose of the Anti-Recognition Laws is to eliminate
this discretion. Louisiana denies the opportunity for a fair hearing to same-sex couples, and only
same-sex couples; a court that enforces these Louisiana laws is categorically bound to deny
recognition. Indeed, Defendants submitted affidavits stating that under the Anti-Recognition
Laws they have no discretion to recognize the marriage of a same-sex couple.
1
This is a
discrimination of an unusual character that violates equal protection and due process.

1
See Affidavit of Hon. Thomas A. ("Tim") Barfield, Jr., Rec. Doc. 84-4 at 8 ("the Department must abide
by the laws of the State of Louisiana, and . . . said laws expressly prohibit Louisiana courts and public
officials from recognizing for any purpose a purported marriage between persons of the same sex
- 5 -
1159284v3
B. No Sufficient Rationale Justifies the Anti-Recognition Laws.
Defendants again offer their "natural procreat[ion]" and "social consensus"
rationales for the Anti-Recognition Laws. Rec. Doc. 102 at 15-18. Neither can survive
constitutional scrutiny, even if this Court applies rational basis review. All three of the most
recent federal district decisions reject procreation-based rationales for same-sex marriage bans.
E.g., Geiger, 2014 U.S. Dist. LEXIS 68171, at *43 (applying rational basis, holding that "any
governmental interest in responsible procreation is not advanced by denying marriage to gay and
lesbian couples"); Whitewood, 2014 U.S. Dist. LEXIS 68771, at *48 (applying heightened
scrutiny, holding that there is no relationship between Pennsylvania's same-sex ban and the
purported objectives of responsible procreation and child-rearing); Latta, 2014 U.S. Dist. LEXIS
66417, at *69-71 (applying heightened scrutiny, holding that Idaho's ban contravened Justice
Kennedy's warning that states may not ignore the welfare of children of same-sex couples). Nor
is Defendants' social-consensus rationale sufficient. Latta, 2014 U.S. Dist. LEXIS 66417, at *80
(deference to voters "has no application . . . where voters imposed a purposefully discriminatory
policy that undermines a fundamental right").
C. Plaintiffs Seek Recognition of their Fundamental Right to Marry, Not a New
Right of "Same-Sex Marriage," and Strict Scrutiny Applies.
Defendants seemingly do not dispute the existence of a fundamental right to marry but
argue that gays and lesbians have no "generalized right to marry" and that Plaintiffs seek
recognition of a new right"the right to marry someone of the same sex." Rec. Doc. 102 at 19

contracted in another jurisdiction."); Affidavit of Hon. Kathy Kliebert, Rec. Doc. 84-5 at 6-7, 9-10 ("my
department and its divisions and offices are prohibited from authorizing and/or recognizing under any
provision of the Louisiana Childrens Code or any other provision of Louisiana law the Louisiana adoption
of a child by two persons of the same sex based on their out-of-state same-sex marriage."); Affidavit of
Hon. Devin George, Rec. Doc. 84-6 at 7, 9 ("my office is prohibited from issuing a birth certificate
recognizing two persons of the same sex as the parents of a child based on their same-sex marriage
contracted in another jurisdiction.").
- 6 -
1159284v3
(emphasis in original). Defendants' argument ignores Supreme Court precedent that establishes
an "unembellished right to marry." Latta, 2014 U.S. Dist. LEXIS 66417, at *37 ("This 'new
right' argument attempts to narrowly parse a right that the Supreme Court has framed in
remarkably broad terms.").
The right to marry is fundamental and deeply rooted. See, e.g., Meyer v. Nebraska, 262
U.S. 390, 399 (1923). The Supreme Court has repeatedly invalidated laws that infringe this right.
In Loving v. Virginia, the Court held that "the freedom to marry or not marry[] a person of
another race resides with the individual and cannot be infringed by the State." 388 U.S. 1, 12
(1967). The Court reaffirmed the right to marry in Zablocki v. Redhail, striking down a
Wisconsin law that required a resident to seek court permission to marry when the resident had
children not in his custody. 434 U.S. 374 (1978). In Turner v. Safley, recognizing the emotional
and spiritual significance of marriage and the benefits that flow from it, the Court struck down a
law restricting inmates' right to marry. 482 U.S. 78, 95-96 (1987) ("These incidents of marriage,
like the religious and personal aspects of marriage commitment, are unaffected by the fact of
confinement, or the pursuit of legitimate penological objectives.").
Like all citizens, gay and lesbian individuals enjoy the right to marry. An individual does
not forfeit fundamental rights when coming out of the closet. See Romer, 517 U.S. at 635-36;
Lawrence v. Texas, 539 U.S. 558, 574 (2003). Lawrence observed that "our laws and tradition
afford constitutional protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education." 539 U.S. at 574. The Court
concluded that "[p]ersons in a homosexual relationship may seek autonomy for these purposes,
just as heterosexual persons do." Id. In Windsor, the Court invalidated Section 3 of DOMA
because the federal government's definition of marriage as encompassing only different-sex
- 7 -
1159284v3
relationships unconstitutionally interfered "with the equal dignity of same-sex marriages
recognized by states." 133 S. Ct. at 2693.
The Supreme Court has consistently venerated the right to marry "as opposed to a sub-
right tied to the facts of the case." Latta, 2014 U.S. Dist. LEXIS 66417, at *37. "Loving was no
more about the 'right to interracial marriage' than Turner was about the 'prisoner's right to marry'
or Zablocki was about the 'dead-beat dad's right to marry.'" Id. These cases recognized that the
fundamental right to marry extends to all citizens:
If every individual enjoys a constitutional right to marry, what is the substance of
that right for gay or lesbian individuals who cannot marry their partners of
choice? Traditional man-woman marriage is no answer, as this would suggest
that gays and lesbians can switch off their sexual orientation and choose to be
content with the universe of opposite-sex partners approved by the State.
Latta, 2014 U.S. Dist. LEXIS 66417 at *38-39. Laws that infringe on the right to marry must be
narrowly tailored to promote a legitimate governmental interest, but the Anti-Recognition Laws
are not. Louisiana's categorical refusal to recognize the Plaintiffs' valid marriages
unconstitutionally infringes their fundamental right to marry.
D. Heightened Scrutiny Applies in the Equal Protection Analysis.
Defendants claim that Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004), and Romer
v. Evans, 517 U.S. at 633, mandate that this Court apply rational basis review. Rec. Doc. 102 at
6-7. But neither case held that sexual orientation could never be subject to heightened scrutiny.
(And while both courts applied rational basis review, in both cases sexual orientation
classifications were held to be impermissible.)
Even pretermitting whether the Supreme Court applied heightened scrutiny in Windsor,
see Pls.' Mem. Opp., Rec. Doc. 100 at 3, Defendants have not addressed the indicia used to
determine whether heightened scrutiny applies: (1) whether the group has been subjected to "a
history of purposeful unequal treatment," Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976);
- 8 -
1159284v3
(2) whether the group possesses a characteristic "that frequently bears no relation to ability to
perform or contribute to society," City of Cleburne, Tex v. Cleburne Living Ctr., 473 U.S. 432,
440-41 (1985); (3) whether the group exhibits "obvious, immutable, or distinguishing
characteristics that define them as a discrete group," Bowen v. Gilliard, 483 U.S. 587, 602 (1987)
(internal citation and quotation marks omitted); and (4) whether the group is "a minority or
politically powerless," id. Defendants do not argue that sexual orientation is mutable
2
or that it
bears a relationship to a person's ability to participate in society. Nor have Defendants
commented on Louisiana's history of discrimination against its gay and lesbian citizens, whose
lack of political power is underscored by the Louisiana Legislature's recent rejection of
legislation prohibiting housing discrimination based on sexual orientation and refusal to repeal
unconstitutional anti-sodomy laws. Defendants do not refute these facts. All four factors
indicate that Plaintiffs are members of a class subject to heightened scrutiny.
Finally, the laws are subject to heightened scrutiny because they discriminate on the basis
of sex. Plaintiffs' analogy to the racial classification at issue in Loving is apt. Just as the anti-
miscegenation laws discriminated on the basis of race, so too do these laws discriminate on the
basis of sex. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013) ("the court finds
that the fact of equal application to both men and women does not immunize Utah's Amendment
3 from the heightened burden of justification that the Fourteenth Amendment requires of state
laws drawn according to sex"), appeal docketed, No. 13-4178 (10th Cir.). Further, the laws are
rooted in impermissible sex stereotypes about the role of men and women within the family.
See, e.g., Amicus of Prof. Hawkins et al., Rec. Doc. 94 at 15 (arguing that "marriage is a primary

2
Defendants make a fleeting reference to "sexual preference," Rec. Doc. 102 at 14, insinuating that sexual
orientation is not an immutable characteristic but rather a changeable part of a person's identity.
Nevertheless, Defendants do not dispute this factor.
- 9 -
1159284v3
means of shaping men's identities and behaviors" because masculinity depends on a husband
being perceived as the "provider" and protector of a family). And while Defendants suggest that
the burden is on Plaintiffs to show a discriminatory motive, Rec. Doc. 102 at 14, a "plaintiff who
claims that a governmental classification explicitly based on sex violates the Equal Protection
Clause . . . does not have to show discriminatory intent." Doe ex rel. Doe v. Vermilion Parish
Sch. Bd., 421 F. App'x 366, 372 (5th Cir. 2011). If Plaintiff Jackie Brettner were a man, her
marriage to Lauren Brettner would be recognized by the State of Louisiana, and she would be
recognized as the parent of their child born during the marriage. Because of her sex, the state
refuses to recognize her marriage or her parental rights. This is sex discrimination subject to
heightened scrutiny.
II. CONCLUSION
Plaintiffs include six committed, loving couples who crossed state lines to solemnize
their commitment to one another. Louisiana's Anti-Recognition Laws effectively invalidate their
marriages when they cross the Louisiana border. The laws strip them of all incidents of marriage
and prevent them from establishing legally recognized two-parent households for their children.
Defendants have argued that that these couples can contract around the Anti-Recognition Laws,
but the undisputed facts demonstrate that is untrue. A private agreement cannot circumvent
Louisiana's adoption, birth certificate, or tax laws. Nor may a private contract alleviate the
stigma these laws place on same-sex couples and their children. See Windsor 133 S. Ct. at
2693.
Defendants have offered no rational justification for the Anti-Recognition Laws, and they
cannot survive rational basis review, let alone heightened scrutiny. These laws serve only to
institutionalize and sanction discrimination against gays and lesbians. This Court should follow
Supreme Court precedent and the reasoning of the thirteen other federal district courts who have
- 10 -
1159284v3
addressed same-sex marriage issues since Windsor. "The logic of these precedents virtually
compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they
seek the benefits and responsibilities of civil marriage." Latta, 2014 U.S. Dist. LEXIS 66417 at
*82. Thus, Plaintiffs pray that the Court grant their Motion for Partial Summary Judgment and
hold that Louisiana's Anti-Recognition Laws are unconstitutional.
WITTMANN L.L.C.
Telephone: (504) 581-3200
700 Camp Street
Phone: 504-524-3306
Fax: 504-529-4179
Blanchard
nd
day of June, 2014, the foregoing Reply
Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment has been served
upon all counsel of record by the Court's CM/ECF system.



Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

ORDER
Having considered Defendants Motion for Leave to File Reply Brief, it is
ORDERED that the motion is GRANTED.

________________________________________

4th
Hello This is a Test
June


Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

DEFENDANTS REPLY BRIEF IN SUPPORT OF
PARTIAL SUMMARY JUDGMENT AND DISMISSAL

Plaintiffs opposition identifies no material fact disputes. See Doc. 100-5, 1-7.
1

The Court may therefore resolve as a matter of law whether Louisianas refusal to
recognize plaintiffs same-sex marriages violates the Fourteenth Amendment.
To cut to the chase: if plaintiffs are right that states are constitutionally
compelled to recognize same-sex marriage, Windsor makes no sense. See Def. MSJ
(Doc. 84-1) 4-7; Def. Opp. (Doc. 102-1) 2-6 (discussing United States v. Windsor, 133
S. Ct. 2675 (2013)). Windsors nine-paragraph discussion of states historical and

1
Any disagreements in plaintiffs counter-statement do not pertain to material facts.
Because Louisiana law is clear, it is immaterial that plaintiffs have no independent
knowledge of defendants understanding of Louisiana law. Doc. 100-5, 9-11. Further,
despite plaintiffs response (see id. 8), the parties do not disagree about the contractual
remedies available to same-sex couples; defendants agree that Louisiana law provides no
mechanism to contract for custody of a child. Pl. Opp. (Doc. 100) 14.
2
essential authority to define the marital relation, id. at 2692, was wasted ink. Its
praise of New Yorks statewide deliberative process that enabled its citizens to
discuss and weigh arguments for and against same-sex marriage, id. at 2689, was
window-dressing. Accepting plaintiffs claims would effectively overrule Windsor.
A. Windsor reaffirmed states authority to define marriage.
Plaintiffs respond that Windsor did not authorize states to violate the
Fourteenth Amendment. Pl. Opp. 20. No one says it did. The point is that Windsor
struck down DOMA because the statesnot the federal governmentdecide
whether to recognize same-sex marriage. This does not create a domestic relations
exception to the Fourteenth Amendment, Pl. Opp. 19, but simply recognizes that
defining marriage falls within the States broader authority to regulate the subject
of domestic relations. 133 S. Ct. at 2691.
Plaintiffs candidly assert that the Constitution establish[es] a one-way ratchet
allowing states to recognize same-sex marriage but denying them authority not to.
Pl. Opp. 20. But that argument ignores Windsors respect for the responsibility of
state citizens to discuss and weigh arguments for and against same-sex marriage.
133 S. Ct. at 2692, and it ignores the axiom that [i]n the search for enlightened
public policy, individual States and communities are free to experiment with a
variety of approaches to public issues. EXEC. ORDER NO. 12612, 52 FED. REG. 41685,
2(f) (Oct. 26, 1987) (Pres. Reagan).
B. Plaintiffs claims defy the Full Faith and Credit Clause.
Plaintiffs also miss the relevance of the Full Faith and Credit Clause (FFC). The
point is not that FFC trumps the Fourteenth Amendment, see Pl. Opp. 22 (asserting
3
that the amendment controls in any conflict with FFC), but rather that
plaintiffs claims are functionally identical to the claim that Louisiana must give
full faith and credit to same-sex marriages. (Indeed, the Robicheaux plaintiffs raise
an FFC claim, see Def. MSJ 10). It is settled, however, that FFC does not compel
states to recognize out-of-state marriages. Def. MSJ 7-10.
While accepting this principle as not disputed, Pl. Opp. 22, plaintiffs demand
additional warrant for Louisianas marriage policy. But Windsor itself explained
why stateswho have a rightful and legitimate concern in the marital status of
persons domiciled within [their] borders, 133 S. Ct. at 2691may reasonably
decide not to recognize same-sex marriage. This decision is a far-reaching legal
acknowledgment, requiring the communitys considered perspective, and
demanding formation of consensus among citizens. Id. at 2692-93. Plaintiffs
reduce Louisianas own decision to arbitrarily target[ing] a group for
discrimination, Pl. Opp. 22, but Windsor called it a proper exercise of sovereign
authority within our federal system. 133 S. Ct. at 2692.
2

2
Moreover, DOMA section 2 is not an affirmative defense, Pl. Opp. 22-23, but simply
confirms that states are not compel[led] to substitute the statutes or other states for its
own statutes dealing with a subject matter concerning which it is competent to legislate.
Def. MSJ 10 (quoting Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Even
assuming section 2 is an affirmative defense, however, defendants have not waived it
because (1) they generally denied that FFC compels recognition of same-sex marriages (see
Doc. 80 62); and (2) they raised section 2 soon enough not to prejudice plaintiffs. See, e.g.,
Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (no waiver if defendant
raised the issue at a pragmatically sufficient time and [the plaintiff] was not prejudiced in
its ability to response) (quotes omitted).
4
II. LOUISIANAS MARRIAGE LAWS SATISFY EQUAL PROTECTION.
A. Binding precedent requires rational-basis review.
Louisianas laws trigger rational-basis review under binding precedent. Def.
MSJ 11-12; Def. Opp. 6-11. The doctrinal evolution plaintiffs point to in Romer,
Lawrence, and Windsor (Pl. Opp. 5) fails to support heightened scrutiny: Windsor
applied the same rational-basis review in Romer, Def. Opp. 7-8, and Lawrence was
not an equal protection case. The only post-Windsor development plaintiffs citethe
SmithKline decision, Pl. Opp. 4-5 n.6misreads Windsor and is under a sua sponte
en banc call. Id. at 8 (discussing SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471 (9th Cir. 2013)). Finally, plaintiffs are wrong that, [l]ike DOMA,
Louisiana laws create two contradictory marriage regimes within the same State.
Pl. Opp. 4. DOMA usurped the states domestic relations authority, while Louisiana
exercised that authority. So even assuming Windsor applied something north of
rational-basis to a federal marriage definition, there would be no warrant for
applying it to a state definition.
3

B. Louisianas marriage laws further critical government interests.
Louisianas marriage laws further two critical government interests. First, a
primary purpose of marriage is to link children with an intact family formed by
their biological parents. Def. Opp. 15. Thus it is rational to define marriage as a
man-woman union because it remains true that the vast majority of children are
born as a result of a sexual relationship between a man and a woman. Hernandez

3
Plaintiffs initially urged heightened scrutiny based on sex discrimination, Pl. MSJ (Doc.
86-1) 15, but omit the argument in their opposition. In any event, Louisianas marriage
laws do not discriminate on the basis of sex. Def. Opp. 11-14.
5
v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006). Second, Louisiana constitutionalized its
definition to ensure that a change as profound as altering the definition of
marriage would occur only through wide social consensus. Def. Opp. 17. That
decision was rational because enlarging the historic definition is a far-reaching
step with substantial societal impact that demands citizen consensus. Windsor,
133 S. Ct. at 2692, 2693.
Plaintiffs dismiss these rationales as specious. Pl. Opp. 1. But their arguments
come nowhere near to showing that Louisianas laws are so unrelated to the
achieve of any combination of legitimate purposes that [the Court] can only
conclude [Louisianas] actions were irrational. Doe v. Jindal, 851 F.Supp.2d 995,
1005-06 (E.D. La. 2012) (quotes omitted).
4

1. Louisianas laws link children with their biological parents.
Primarily, plaintiffs claim Louisianas marriage laws are irrational because
defendants do not explain how denying recognition to same-sex marriages has any
effect on heterosexuals whatsoever. Pl. Opp. 8. They say Louisiana must prove that
recognizing same-sex marriage will influence whether heterosexual couples will
marry and, conversely, that forbidding it will increase the number of couples

4
Oddly, plaintiffs assert that [d]efendants offer no evidence to support [Louisiana] laws
beyond [defendants] three affidavits. Pl. Opp. 1. But the Civil Code articles and
commentary set forth the objectives of Louisiana marriage and family law, Def. MSJ 12-17,
and the Louisiana Supreme Court has exhaustively interpreted the legislative history of
the 2004 marriage amendment. Forum for Equality PAC v. McKeithen, 2004-2477, pp. 14-
32 (La. 1/19/05); 893 So.2d 715, 725-37. This is more than enough to sustain summary
judgment, particularly under rational-basis. See Heller v. Doe, 509 U.S. 312, 320 (1993) ([a]
State has no obligation to produce evidence to sustain the rationality of a statutory
classification, but instead the burden is on the one attacking the legislative arrangement
to negative every conceivable basis which might support it) (quotes omitted).
6
choosing to enter into opposite-sex marriages. Id. at 8-9 (quoting De Leon v. Perry,
935 F.Supp.2d 632, 653 (W.D. Tex. 2014); Goodridge v. Dept of Pub. Health, 798
N.E.2d 941, 963 (Mass. 2003)). Plaintiffs are wrong. They would require Louisiana
not only to prove a negative, but to predict the future. No level of scrutiny requires
the power of prophecycertainly not rational basis, in which a legislative choice
may be based on rational speculation unsupported by evidence or empirical data.
F.C.C. v. Beach Comm., Inc., 508 U.S. 307, 315 (1993).
5

Predicting the social effects of redefining marriage is reserved to the democratic
process. Windsor said so. Unlike plaintiffs, Windsor reposed faith in the wisdom of
citizens to discuss and weigh arguments for and against same-sex marriage. 133
S. Ct. at 2689. Unlike plaintiffs, Windsor acknowledged that a states citizens
understand[ ] that marriage is more than a routine classification whose shape has
substantial societal impact in the daily lives and customs of its people. Id. at
2692, 2693. And, unlike plaintiffs, Windsor understood thatin a nation where
people disagree on this profound issuealtering the longstanding definition of
marriage demands a genuine consensus of a states citizens. Id. at 2692.
Plaintiffs also claim Louisianas man-woman definition does not rationally link
children to biological parents because same-sex couples can have children through
adoption or assistive reproductive technology. Pl. Opp. 10; see also id. at 2 n.3 (two
plaintiffs used the method of conception known as reciprocal in vitro

5
See also Planned Parenthood v. Abbott, __ F.3d __, 2014 WL 1257965 at *7 (5th Cir.
Mar. 27, 2014) (Because [rational basis] does not lend itself to an evidentiary inquiry in
court, the state is not required to prove that the objective of the law would be fulfilled.)
7
fertilization). Plaintiffs are again mistaken. First, they cannot deny that the vast
majority of children are born from the union of opposite-sex couples. Hernandez,
855 N.E.2d at 7. Merely because Louisianas classification does not include every
other adoptive or reproductive scenario does not make it irrational. LeClerc v. Webb,
419 F.3d 405, 420 (5th Cir. 2005) (rational-basis review seek[s] only the assurance
that the classification at issue bears some fair relationship to a legitimate public
purpose) (quotes omitted). Second, plaintiffs overlook that Louisiana has
compelling interests in regulating adoption and reproductive technology. Louisiana
regulates both subjects to reinforce its marriage and family laws.
6
Plaintiffs would
brand Louisianas family law irrational simply because it does not embrace every
new iteration of reproductive technology.
7
That cannot be right, however, given
states authority to regulate the subject of domestic relations with respect to the
protection of offspring. Windsor, 133 S. Ct. at 2691 (quotes omitted).
2. Louisianas laws ensure consensus-based social change.
Instead of confronting Louisianas social consensus argumentwhich comes
directly from Windsor and Schuette (Def. MSJ 17-20; Def. Opp. 3-5, 17-18)
plaintiffs spend five pages discussing desegregation decisions from the 1960s. Pl.

6
See LA. CHILD. CODE art. 1221 (allowing joint private adoptions only by a married
couple); LA. R.S. 9:130 (IVF patients may renounce parental rights to embryo only in favor
of another married couple willing and able to receive the [embryo]); LA. CIV. CODE art.
188 (husband may not disavow a child born to his wife as a result of an assisted conception
to which he consented).
7
For instance, regarding reciprocal in vitro fertilization (Pl. Opp. 2 n.3), Louisiana
would recognize the maternity only of the woman who bore the child, not the woman who
donated her egg. LA. CIV. CODE art. 184 cmt. a (the mother of a child is the woman who
gives birth to the child); see also KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK at 388
(West 2013) (under article 184, in the case of donated eggs, the birth mother is the legal
mother even though the child has the DNA of another person).
8
Opp. 15-19. They assert that Louisiana, by retaining its marriage definition, has
determined to actively work against Plaintiffs in their struggle for equality, just
[a]s it did during desegregation. Id. at 18. That is rhetoric, not argument.
Important as they were, the desegregation cases can be summarized in one
sentence: The equal protection clause of the fourteenth amendment prevents any
invidious discrimination on the basis of race. Lee v. Macon Cnty. Bd. of Ed., 448
F.2d 746, 753 (5th Cir. 1971) (citation omitted). But they do provide a helpful
contrast with this case. The desegregation cases involved strict scrutiny; this case
involves rational-basis review. The desegregation cases involved orchestrated
resistance to federal authority accompanied by demonstrations, picketing, stone-
throwing, and turmoil, (Pl. Opp. 17 (quoting Bush v. Orleans Parish Sch. Bd., 308
F.2d 491, 494 (5th Cir. 1962)); this case involves a states citizens, peacefully voting.
Finally, the desegregation cases involved racial discrimination that violated the
clear and central purpose of the Fourteenth Amendment, Loving v. Virginia, 388
U.S. 1, 10 (1967); this case involves an aspect of marriage that until recent years
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. The desegregation cases utterly fail to support plaintiffs claims.
III. LOUISIANAS MARRIAGE LAWS SATISFY DUE PROCESS.
Plaintiffs due process claims fail because a right to marry someone of the same
sex is not deeply rooted in this Nations history and tradition. Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997); Def. MSJ 20-24; Def. Opp. 18-23. Plaintiffs
mistakenly say this right does not break new ground, Pl. Opp. 6, but Windsor said
9
New Yorks adoption of same-sex marriage in 2011 involved a new perspective, a
new insight. 133 S. Ct. at 2689. No state recognized the right until 2003, and two-
thirds of the states do not recognize it today. Def. MSJ 1-2. The right therefore
cannot be so rooted in the traditions and conscience of our people as to be ranked
as fundamental. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
A careful description of the asserted right must include the fact that it involves
marrying a same-sex partner. Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505
(5th Cir. 2006) (right must be carefully describe[d]). But, far from optional, the
man-woman feature of marriage was thought essential to the very definition and
to its role and function throughout the history of civilization. Windsor, 133 S. Ct. at
2689 (emphasis added). Plaintiffs must be more precise than invoking a generic
right to marry. Glucksberg, 520 U.S. at 722; Def. Opp. 19.
Plaintiffs respond that [a]ll individuals share in fundamental rights. Pl. Opp.
6. No one doubts that. But there is a tradition of carefully formulating the interest
at stake in substantive-due-process cases to discern whether a fundamental right
is asserted. Glucksberg, 520 U.S. at 722. Here, plaintiffs have not. Nor does that
analysis repeat[ ] the mistake of Bowers by limiting the right too narrowly. Pl.
Opp. 6; Bowers v. Hardwick, 478 U.S. 186 (1986). The same case that corrected
Bowers said it d[id] not involve whether the government must give formal
recognition to any relationship that homosexual persons may enter. Lawrence v.
Texas, 539 U.S. 558, 578 (2003).
Plaintiffs and amici also rely on the Supreme Courts right to marry cases. Pl.
10
Opp. 6, 12-13; Doc. 92. But those caseswhich struck down marriage bans based on
incarceration, child support, and race, Def. Opp. 20-21do not suggest a right to
marry regardless of a spouses sex. See Zablocki v. Redhail, 434 U.S. 374, 386 (1978)
(right to marry does not impact every state regulation which relates in any way
to the incidents of or prerequisites for marriage). Only five years after Lovinga
case heavily cited by plaintiffs and other courts, Def. MSJ 23-24; Def. Opp. 5-6the
Supreme Court rejected a constitutional right to same-sex marriage. Baker v.
Nelson, 409 U.S. 810 (1972). In light of that, a right to marry someone of the same
sex cannot be deeply rooted in this Nations history and tradition. Glucksberg, 520
U.S. at 720-21 (quotes omitted).
CONCLUSION
judgment and motion to dismiss.
s/ S. Kyle Duncan
P.O. Box 94005
Phone: (202) 714-9492
Fax: (225) 326-6098
/s S. Kyle Duncan
S. Kyle Duncan, Attorney for Defendants
TABLE OF CONTENTS

Defendants Reply Brief .................................................................................................. 1

I. Plaintiffs would nullify Louisianas authority to define marriage. ................ 1
A. Windsor reaffirmed states authority to define marriage ............................. 2

B. Plaintiffs claims defy the Full Faith and Credit Clause .............................. 2

II. Louisianas marriage laws satisfy equal protection ........................................ 4

A. Binding precedent requires rational-basis review ........................................ 4

B. Louisianas marriage laws further critical government interests ............... 4

1. Louisianas laws link children with their biological parents .................. 5

2. Louisianas laws ensure consensus-based social change ........................ 7

III. Louisianas marriage laws satisfy due process ................................................ 8

Conclusion ..................................................................................................................... 10


2

Cases
Baker v. Nelson,
409 U.S. 810 (1972) ................................................................................................. 10

Bowers v. Hardwick,
478 U.S. 186 (1986) ................................................................................................... 9

Bush v. Orleans Parish Sch. Bd.,
308 F.2d 491 (5th Cir. 1962) ..................................................................................... 8

De Leon v. Perry,
935 F.Supp.2d 632 (W.D. Tex. 2014) ........................................................................ 5

Doe v. Jindal,
851 F.Supp.2d 995 (E.D. La. 2012) ........................................................................... 5

F.C.C. v. Beach Comm., Inc.,
508 U.S. 307 (1993) ................................................................................................... 6

2004-2477 (La. 1/19/05); 893 So.2d 715 .................................................................... 5

Franchise Tax Bd. of Cal. v. Hyatt,
538 U.S. 488 (2003) ................................................................................................... 3

Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) .................................................................................... 5

Heller v. Doe,
509 U.S. 312 (1993) ................................................................................................... 5

855 N.E.2d 1 (N.Y. 2006) ...................................................................................... 4, 6

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................................... 4, 9

LeClerc v. Webb,
419 F.3d 405 (5th Cir. 2005) ..................................................................................... 7

Lee v. Macon Cnty. Bd. of Ed.,
448 F.2d 746 (5th Cir. 1971) ..................................................................................... 8
3

Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................................. 8, 10

462 F.3d 498 (5th Cir. 2006) ..................................................................................... 9

Pasco ex rel. Pasco v. Knoblauch,
566 F.3d 572 (5th Cir. 2009) ..................................................................................... 3

Planned Parenthood v. Abbott,
__ F.3d __, 2014 WL 1257965 (5th Cir. Mar. 27, 2014) ........................................... 6

Romer v. Evans,
517 U.S. 620 (1996) ................................................................................................... 4

Schuette v. BAMN,
134 S. Ct. 1623 (2014) ............................................................................................... 7

740 F.3d 471 (9th Cir. 2013) ..................................................................................... 4

Snyder v. Massachusetts,
291 U.S. 97 (1934) ..................................................................................................... 9

133 S. Ct. 2675 (2013) ..................................................................................... passim

521 U.S. 702 (1997) .............................................................................................. 8-10

434 U.S. 374 (1978) ................................................................................................. 10

Statutes
110 Stat. 2419 ........................................................................................................ 2, 4

28 U.S.C. 1738C ............................................................................................................ 3

LA. CHILD. CODE art. 1221 .............................................................................................. 7

LA. CIV. CODE art. 184 .................................................................................................... 7

4
LA. R.S. 9:130 .................................................................................................................. 7

U.S. CONST. art. IV ....................................................................................................... 2-3


LA. CONST. art. XII, 15 ................................................................................................. 5

Other Authorities
EXEC. ORDER NO. 12612, 52 FED. REG. 41685 ................................................................ 2

KERRY TRICHE, LOUISIANA FAMILY LAW HANDBOOK ...................................................... 7




Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

MOTION TO ENROLL AS CO-COUNSEL OF RECORD

NOW INTO COURT, comes J. MICHAEL JOHNSON, Attorney at Law, who
respectfully requests that he be allowed to enroll as co-counsel of record for
Defendants Tim Barfield, Secretary of the Louisiana Department of Revenue, Kathy
Kliebert, Secretary of the Louisiana Department of Health and Hospitals, and Devin
George, Louisiana State Registrar, in these proceedings. In accordance with Local
Rule 83.2.12, counsel for said defendants, S. Kyle Duncan, Special Assistant Attorney
General for the Louisiana Department of Justice, joins in this motion and consents
thereto.
Respectfully submitted this 10
th
day of June, 2014.

By: /s/ J. Michael Johnson
J. Michael Johnson
LA Bar Roll No. 26059
2250 Hospital Drive, Ste. 248
Bossier City, LA 71111
Phone: (318) 658-9456
Facsimile: (318) 658-9605
Email: mjohnsonlegal@gmail.com


I hereby certify that on June 10, 2014, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system, which will be electronically served
on all counsel of record.

By: /s/ J. Michael Johnson
J. Michael Johnson




Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

ORDER

Having considered the Motion to Enroll as Co-Counsel of Record filed by J.
Michael Johnson, and consented to by counsel for defendants, S. Kyle Duncan, Special
Assistant Attorney General for the Louisiana Department of Justice, it is ORDERED
that the motion is GRANTED, and that J. Michael Johnson be and he is enrolled as
co-counsel of record in these proceedings for Defendants Tim Barfield, Secretary of
the Louisiana Department of Revenue, Kathy Kliebert, Secretary of the Louisiana
Department of Health and Hospitals, and Devin George, Louisiana State Registrar.

________________________________________



Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

ORDER

Having considered the Motion to Enroll as Co-Counsel of Record filed by J.
Michael Johnson, and consented to by counsel for defendants, S. Kyle Duncan, Special
Assistant Attorney General for the Louisiana Department of Justice, it is ORDERED
that the motion is GRANTED, and that J. Michael Johnson be and he is enrolled as
co-counsel of record in these proceedings for Defendants Tim Barfield, Secretary of
the Louisiana Department of Revenue, Kathy Kliebert, Secretary of the Louisiana
Department of Health and Hospitals, and Devin George, Louisiana State Registrar.

________________________________________

11th
Hello This is a Test
June



Plaintiffs
v.


Defendants

CIVIL ACTION

NO. 13-5090
SECTION F(5)


REF: ALL CASES

DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY
Earlier today the U.S. Ninth Circuit Court of Appeals denied en banc review,
over the dissent of three judges, in SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 741 (9th Cir. 2014), a decision discussed by both sides in this case. See Order
Denying En Banc Rehg in No. 11-17357, SmithKline Beecham Corp. v. Abbott Labs.
(filed June 24, 2014) (attached as Ex. 1); see also Doc. 86-1 at 12; Doc. 102 at 8; Doc.
100 at 3; Doc. 103-2 at 4 (discussing SmithKline). Defendants submit as
supplemental authority Judge OScannlains dissent (joined by Judges Bybee and
Bea) because it supports defendants argument, Doc. 102 at 7-9, Doc. 103-2 at 4,
that the Supreme Courts Windsor opinion does not apply heightened equal
protection scrutiny to sexual orientation classifications. See Ex. 1 at 8 (dissent of
OScannlain, J., joined by Bybee and Bea, JJ.) (stating that nothing in Windsor
compels the application of heightened scrutiny to this juror selection challenge); id.
at 9 (noting that Windsor declined to adopt the reasoning of the Second Circuit,
which had expressly applied heightened scrutiny to the equal protection claim in
the case) (citing Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012)); id. at

2
10-11 (explaining that, [i]n declaring [DOMA] Section [3] to be motivated by no
legitimate purpose, Windsor only applies rational basis review in the same way
that Romer reviewed Colorados Amendment 2 for rational basis); id. at 11 (noting
that Windsor relied on rational basis cases).

s/ S. Kyle Duncan
P.O. Box 94005
Phone: (202) 714-9492
Fax: (225) 326-6098

J. Michael Johnson
Law Offices of Mike Johnson, LLC
2250 Hospital Drive
Beene Office Park, Suite 248
Bossier City, LA 71111
Phone: (318) 658-9456
Fax: (318) 658-9605
Attorneys for Defendants


3

I hereby certify that on June 24, 2014, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system, which will be electronically served
on all counsel of record.

/s S. Kyle Duncan
S. Kyle Duncan

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