Thursday, April 16, 2015

Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in  Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.    

 Recall that the Court certified two questions:

    1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

The case has attracted what seems to be a record number of amicus briefs.  As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.  [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of  NFIB v. Sebelius attracted 136 amicus briefs.]

The count for Obergefell v. Hodges stands at  139. 147  [updated: 17 April 2015]  149 [updated]  LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.

 76  77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.

58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.

05 amicus briefs support neither party (but as described below, generally support Respondents).

According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.”  While such a brief “may be of considerable help to the Court,” an  “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

 An impressive number of the Amicus Briefs are authored or signed by law professors.  Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination.  Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.

Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives.  [Late additions appear below]Special thanks to City University of New York (CUNY)  School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.


Briefs in Support of Neither Party

Although these five briefs in support of neither party, they each ultimately urge affirmance.

1.              Mae Kuykendall, David Upham, and Michael Worley – While in support of neither party, this amicus supports Respondents’ position on question 1.  Amici Mae Kuykendall, a Conlawprof, and Upham Worley urge the Court to affirm and hold that the Fourteenth Amendment does not require states to license same-sex marriages, because states have historically set their own limitations on marriage, finding a Fourteenth Amendment licensing requirement would improperly convert many state family law cases into federal issues.  They take no position on question 2 because they could not agree amongst themselves.
2.              Prof. W. Burlette Carter – Amicus Burlette Carter, Lawprof, supports Respondents’ position and argues that same-sex marriage was not contemplated by the passage of the Fourteenth Amendment and that federalism dictates that states should retain their rights to restrict marriage, although the Court might “require states to establish a procedure for recognizing same-sex relationships.”
3.              Eagle Forum Education & Legal Defense Fund – Amicus, an organization founded by Phyllis Schafley, argues that the domestic relations exception to federal jurisdiction bars consideration of same-sex marriage.  Although filed in support of neither party, Amicus supports Respondents’ position and urges affirmance.
4.              General Conference for Seventh Day Adventists and the Becket Fund for Religious Liberty  – The Amici argue that the Court’s ruling will have a significant impact on religious organizations’ ability to carry out its mission unless there are religious liberty protections. It argues that should the Court recognize a right to marriage for same-sex couples, such ruling should include religious exemptions for people with an objection to same-sex marriage grounded in a religious belief.
5.              Citizens United for the Individual Freedom to Define Marriage -  Amicus, a collection of citizens who believe that defining marriage should not be left to the government, generally support Respondents’ position. Amicus argues that a federal government definition of marriage both implicates and violates the Establishment Clause, which prevents the government from disapproving or approving particular religious beliefs and from engaging in activity that creates divisiveness.  Amicus argues that the Court can reconcile the tension between the Establishment Clause and the Petitioners’ claims by requiring that same-sex couples have a right to civil unions, leaving the freedom to define marriage to the people of the states.


Briefs in Support of Petitioners

 Law professors

 1.              Constitutional Law Scholars Ashutosh Bhagwat, et al. – Amici are 18 ConLawProfs including Erwin Chemerinsky, Lawrence Lessig, Suzanna Sherry, and Jane Schacter, who argue that the Court should apply heightened scrutiny to sexual orientation classifications under Carolene Products.
2.              Legal Scholars Stephen Clark, et. al. – Amici are ConLawProfs Andrew Koppleman, Ilya Somin, Sanford Levinson and others, arguing that bans on same-sex marriage constitute sex discrimination that is subject to heightened intermediate scrutiny. Amici also contend that the bans are (at least in part) based on over-broad generalizations of gender stereotypes, with the impermissible purpose of codifying particular gender roles.
3.              Professors Laurence H. Tribe and Michael C. Dorf –  ConLawProfs Laurence Tribe and Michael Dorf focus on the fundamental right to marry as articulated in Loving v. Virginia, and argue that the Court should not adopt the more limited fundamental rights constructions expressed in other cases such as Washington v. Glucksberg or Michael H. v. Gerald D's footnote 6.
4.              Scholars of the Constitutional Rights of Children – Amici are scholars of family law and the law of equal protection, including LawProfs Catherine E. Smith, Susannah Pollvogt, and Tanya Washington.  Amici argue that the Court has unequivocally held that states may not punish children based on matters beyond their control, and that state marriage bans harm children by depriving them of important legal, economic, and social benefits without justification.
5.              Family Law Scholars – Amici are 74 scholars of Family Law, including LawProfs Courtney Joslin and Joan Heifetz Hollinger, arguing that the rationales denying marriage to same-sex couples fundamentally conflict with family laws and policies in every state.  Amici argue that no State has ever limited marriage to individuals who can procreate and thus arguments based on procreation must fail. Amici also argue that same-sex marriage are unconstitutional because they deprive children of same-sex couples with governmental benefits “in the name of incentivizing others to be idea parents or have more children.”
6.              Conflict of Laws and Family Law Professors – Amici are eighteen law professors with expertise in family law, conflict of laws, and state regulation of marriage, including Joanna Grossman, Katherine Bartlett, Brian Bix, and June Carbone.  Amici argue that blanket anti-recognition laws are historically unprecedented, and states have traditionally recognized marriages that were valid where celebrated.  Amici argue that these anti-recognition laws both violate the Equal Protection Clause and interfere with the fundamental liberty interest in marriage.
7.              Conflict of Law Scholars – Amici are seven scholars who teach and write in the field of conflict of laws, including Tobias Barrington Wolff, Lea Brilmayer, and Herma Hill Kay.  Addressing Question 2 only, Amici argue that even if the Constitution permits states to discriminate against same-sex couples in their marriage laws, the common law of conflicts reveals that states may not discriminate against same-sex couples legally married in another state.  They argue that there are no justifications for denying recognition of marriages performed out-of-state that are constitutionally permissible under Lawrence.
8.              Douglas Laycock, et. al. – Amici are 4 legal scholars and a policy analyst and include ConLawProfs Douglas Laycock and Marie Falinger who study the relationship between religious liberty and same-sex marriage. They argue that the Court can (and should) protect both the liberty of same-sex couples to marry, and the liberty of religious organizations not to recognize such marriages.
9.              Carlos A. Ball et. al. – Amici are five scholars of family law including LawProfs Carlos Ball and Richard Storrow who argue that the Court should consider the past history of pseudo-scientific and pseudo-empirical claims about social and child welfare and reject current that proved to be indefensible and reject similar current proffered justifications.
10.            Foreign and Comparative Law Experts – Amici, six LawProfs  including Harold Hongju Koh and Sujit Choudhry, are experts in foreign and comparative constitutional law and human rights. They argue the Court should consider that multiple democracies have legalized same-sex marriage and been able to successfully balance the rights of religious institutions with the rights of individuals to marry. They also contend that the Court should recognize the  impact its decision may have on the rest of the world.
11.            Columbia Law School Sexuality and Gender Law Clinic – Authored by Lawprof Suzanne Goldberg, amicus argues that state marriage bans impermissible interfere with fundamental rights of personal autonomy.  It highlights that laws constraining marriage on the basis of sex stand in stark contrast to states’ otherwise pervasive respect for marital freedom of choice.
12.            Howard University School of Law Civil Rights Clinic – Amicus clinic, supervised by ConLawProf Aderson Francois, argues that the Court should recognize that the struggle for marriage equality for same-sex couples is constitutionally analogous to the fight for racial equality in marriage and denying equal access to marriage violates the very principles the court relied on in Loving v. Virginia.
13.            Experiential Learning Center at New York University School of Law – Amicus, a project supported by various LawProfs including Peggy Davis and Kendall Thomas, as well as law students, argue that the ratification of the Fourteenth Amendment contemplated the expansion of State marriage definitions, and that the Fourteenth Amendment's Privileges and Immunities and Citizenship clauses were understood to encompass rights of family recognition.
14.            National Women’s Law Center et. al. – Amici are several women’s legal groups and law professors associated with the Williams Institute at UCLA School of Law.  Counsel of record includes LawProf Nan Hunter.  Amici argue that the Court should adopt heightened scrutiny in reviewing the marriage bans because laws that discriminate based on sexual orientation are frequently based in gender stereotypes, which warrant heightened scrutiny. Amici also argue that the marriage bans cannot survive this heightened scrutiny.
15.            BiLaw –Counsel of Record is Lawprof Kyle Velte, joined by other lawprofs, and seek to remind the Court of the history of bisexual invisibility and the ensuing importance of using terminology that is inclusive of bisexual people in its same-sex marriage jurisprudence.  Amicus also argues that bisexual people’s experience demonstrate that same-sex marriage bans are sex discrimination.
16.            Human Rights Campaign et. al.– Authored by ConLawProfs Steve Sanders and Dale Carpenter, with Roberta Kaplan, and signed by “207,551 Americans,” Amici argue that the same-sex marriage bans exhibit constitutionally impermissible animus based on their text, the political and legal context of their passage, their real-world effects, and their lack of legitimate objectives advanced by the bans.
17.            Cato Institute et. al. – Amici include a non-partisan public policy group dedicated to advancing principles of individual liberty and limited government and ConLawProfs William Eskridge and  Steven Calabresi. They argue the original meaning of the Fourteenth Amendment was to ensure all persons and classes equal protection of the law and that even if the original drafters of the Fourteenth Amendment did not expect the amendment to require same-sex couples to marry, the Court should extend its understanding.

18.            United States –Amicus argues that state marriage bans violate the Equal Protection Clause.  Classifications based on sexual orientation are subject to heightened scrutiny and fail heightened scrutiny.  The brief highlights the long history of discrimination against LGBT people, particularly in the areas of criminal law. Sexual-orientation should be added to the list of classifications warranting heightened scrutiny. The Court's recent decision in United States v. Windsor reinforces that State marriage bans are unconstitutional and violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
19.            Hawaii  – Amicus Hawaii, a state in which same-sex marriages are recognized, urges that such marriages should be recognized throughout the nation.  Its specifically argues that marriage, including same-sex marriage, is important for our “existence and survival” as the phrase should be interpreted.
20.            The Commonwealth of Virginia – Amicus argues that state marriage bans violate both the Due Process Clause and the Equal Protection Clause.  Further, federalism cannot justify withholding fundamental rights and equal protection.  Finally, although the marriage bans fail rational-basis test, the Court should hold that more exacting scrutiny applies here.
21.            Massachusetts et. al.  –  Amici consist of 16 States (California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington) and the District of Columbia, each of which have recognized same-sex marriage.  They argue that while marriage is traditionally the province of the State; state powers are constrained by guarantees of Equal Protection and Due Process. States’ universal acceptance of the principal that a valid marriage where celebrated will be recognized in every state, unconstitutionally codifies a second-tier status to same-sex couples considering that many states do not recognize same-sex marriages.
22.            Minnesota – As Amicus, Minnesota focuses on Baker v. Nelson, decided by its state supreme court in 1971, arguing that the nation has changed since then that the law now supports the constitutional right of same-sex couples to marry.
23.            County of Cuyahoga, Ohio – Amicus, a county, argues that same-sex marriage bans unconstitutionally discriminate against minor children being raised in these households by relegating their families to second-class status.
24.            Current and Former Elected Officials of Michigan, Ohio, Kentucky, and Tennessee et. al. – Amici are 156 elected officials and former holders of public office at the federal, state, county, and city levels from all four states of the Sixth Circuit.  They are joined by the official Democratic Parties of Michigan and Ohio.  Amici argue that basic rights and equality of minority groups are not and should not be subject to resolution by the political process.  They argue that gay and lesbian people lack the political power necessary to protect  themselves through the democratic process.
25.            167 Members of the House of Representatives and 44 U.S. Senators -  Amici argue that members of Congress must represent the interests of their constituents, and that same-sex marriage bans unconstitutionally burden this interest. Amici also argue that the federal-state partnership is strongest when families are not excluded from access to marriage rights and that heightened scrutiny is appropriate for LGBT people.
26.            226 U.S. Mayors – The Amici mayors argue that the Court should hold that the fundamental right to marriage applies equally to same-sex couples and opposite couples, and that it cannot be withheld by popular vote or by state legislatures, that the official recognition of marriage for same-sex couples is crucial to a municipalities’ ability to treat everyone with respect and fairness, and that marriage equality cannot achieve its full meaning unless it is recognized nationally.
27.            Kenneth Mehlman, et al. – Amici include many elected or appointed government officials, including Mary Cheney, Rudolph Giuliani, and Meghan McCain, and are comprised of approximately 300 social and political conservatives, moderates, and libertarians from diverse backgrounds.  Amici argue that marriage equality promotes the conservative values of stability, mutual support, and mutual obligation.  Moreover, marriage bans violate the Fourteenth Amendment because none of the putative rationales provide a legitimate justification.
28.            Hon. Lawrence J. Korb  et. al. – Amici are former high-ranking officials in the Armed forces, civilian leaders who oversee the nation's defense, and authorities on national security. The Military is committed to “ensuring that all men and women who serve our country and their families are treated fairly and equally” and that same-sex marriage bans unconstitutionally burden the realization of that goal. The laws unconstitutionally burden LGBT service members' rights to child custody, to make medical decisions for their spouse, and to gain property title through legal rights of survivorship. Equal support for military families is integral to National Security, a state interest recognized as compelling under heightened scrutiny jurisprudence.
29.            John K. Olson – Amicus curiae is a United States Bankruptcy Court Judge who argues that the Court should apply intermediate scrutiny because classifications based on sexual orientation are suspect under Carolene Products.  He also argues that the State same-sex marriage bans violate a person’s fundamental right to travel by unconstitutionally deterring travel to a state that does not permit same-sex marriage.
30.            Lisa Brown, Clerk Register of Deeds for Oakland County, Michigan – Amicus is the current Clerk/Register of Deeds for Oakland County, Michigan, who was a named defendant in the district court proceedings but who maintained a legal position supportive of petitioners and was one of four Michigan county clerks to open her office on a Saturday following that court’s invalidation of the Michigan’s Marriage Amendment.  Amicus writes primarily to dissuade the Court from adopting the “wait and see” approach counseled by the Sixth Circuit due to its history of perpetuating animus against same-sex couples and its negative impact on clerks like herself.
31.            Indiana University  – Amicus argues that a return to a state of marriage inequality in Indiana would harm both Amicus’s educational mission and its ability to recruit the best and brightest students, staff and faculty.  It argues that state same-sex marriage bans are unconstitutional because moral disapproval is not a rational basis on which to deny equal protection.
32.            Organization of American Historians – Amicus is the largest scholarly organization devoted to promoting the study and teaching of American history.  Amicus documents the history of discrimination against gay and lesbian people in the United States, from the 1890s to the present.  It argues that history plays a critical role in the Court’s Equal Protection analysis.
33.            American Sociological Association – Amicus is the national non-profit and non-partisan professional and scholarly association of sociologists in the U.S. and argue that the scholarly consensus is clear that children of same-sex parents fare just as well as children of different-sex parents.  The brief specifically disputes the study by Mark Regnerus that claims that children who said one of their parents had engaged in same-sex romantic relationship during their childhood experienced inferior outcomes.
34.            LGBT Student Organizations at Undergraduate, Graduate, and Professional Schools  – Amici are student organizations at universities across the nation and argue that -recognition of same-sex marriages disadvantages Amici’s constituents from pursuing employment on an equal basis with their non-LGBT peers. State same-sex marriage bans unconstitutionally burden the right to travel, codified in the Fourteenth Amendment, by discouraging same-sex couples to take employment opportunities in states that do not recognize same-sex marriages.
35.            Historians of Marriage and the American Historical Society– Amici include the largest U.S. organization dedicated to history and more than 20 history scholars who concentrate on marriage and the family.  Amici argue that the institution of marriage has evolved over time and should continue to evolve and that procreation has never been the exclusive purpose for marriage.
36.            Gary J. Gates – Amicus is a scholar and research director at the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy at UCLA School of Law. Amicus presents and analyzes census data regarding same-sex couples nationwide and provides data on children raised in these households. It argues that denying marriage to same-sex couples harms the adults and the thousands of children being raised by them, and further argues that same-sex marriage has no recognized effect on the behavior of opposite-sex couples.

37.            American Bar Association – Amicus is a voluntary national organization of nearly 400,000 attorneys in the United States.  It argues that substitutes for marriage are costly, complex, and unequal and cannot cure the discriminatory effects of same-sex marriage bans.
38.            Legal Services NYC – Amicus is the largest provider of civil legal services in to low-income clients in the United States and argues that state same-sex marriage bans are unconstitutional because they uniquely burden lower-income LGBT people who cannot afford the costs of “stitching together” the legal protections that are denied to them.
39.            American Academy of Matrimonial Lawyers – Amicus, a national organization  of 1600 family law attorneys and its state chapters in the Sixth Circuit, argue that family law seeks to promote the “best-interests” of the child, often by ensuring that children have strong bonds with their legal guardians. Same-sex marriage bans run counter to the “best-interests” of children raised by same-sex couples by stripping the children of the thousands of fundamental rights afforded to different-sex married couples.
40.            Bay Area Lawyers for Individual Freedom (BALIF) et. al.  – Amicus BALIF is the nation’s oldest and largest LGBT bar association, and is joined by 30 other LGBT bar associations from around the country.  Amici argue that marriage bans violate the Equal Protection Clause, and it is uniquely the province of the courts to decide the issue.  Amici also point out the various ways in which marriage exclusion harms lesbian and gay individuals and their families.
41.            Institute for Justice – Amicus is a non-profit law firm dedicated to the defense of free speech, school choice, economic liberty, and private property rights.  Amicus argues in its relatively short brief that marriage bans do not pass rational basis review because they do not rest on legitimate state interests, and regardless, they are not rationally related to the purported interests.
42.            NAACP Legal Defense Fund -   Amicus argues that the principles  of Loving v. Virginia involving inter-racial marriage are applicable to same-sex marriage and weigh in favor of invalidating same-sex marriage bans under the Fourteenth Amendment.
43.            Constitutional Accountability Center – Amicus, a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history, reminds the Court that the Supremacy Clause gives courts the duty to enforce the Constitution’s supremacy over all forms of state law and prohibit state majorities from violating constitutional guarantees.  These marriage bans violate the Equal Protection Clause, and fundamental rights must not be subject to a vote.
44.            Human Rights Watch and the NYC Bar Association – Amici urge the Court to look to jurisdictions outside the United States that have legalized same-sex marriage and follow their lead and argue that these countries have not experienced any observable adverse impact on their societies.
45.            Anti-Defamation League et. al. – Amici are a group of religious, civil rights, and cultural organizations that advocate for religious freedom. Amici curiae argue that legislative history and ballot initiative campaigns show that marriage bans have the specific – and improper – purpose of enshrining a particular religious interpretation of marriage into civil law, while expressing a moral disapproval of homosexuality. The bans do not have a secular purpose, and thus violate the Establishment Clause and the Equal Protection Clause.
46.            Leadership Conference on Civil and Human Rights – Amicus is the nation's largest and oldest coalition, made up of more than 200 organizations, with the purpose of protecting civil and human rights in the U.S. The Leadership Conference argues that the Court should rest its decision both on Due Process and Equal Protection grounds. It also argues that all laws that discriminate based on sexual orientation (whether or not related to marriage) are suspect and should be subject to heightened scrutiny under the Equal Protection Clause.
47.            The Alliance: State Advocates for Women’s Rights and Gender Equality –Amicus is an alliance of state-based women’s equality organizations and argues that sexual orientation discrimination is a form of sex discrimination.  It also contends that same-sex couples cannot rely on the democratic process to win the freedom to marry and that the patchwork of state laws on marriage for same-sex couples creates harms and uncertainty for same-sex couples and their children.
48.            Campaign for Southern Equality and Equality Federation – Amicus is a civil rights organization in North Carolina that advocates for the rights of LGBT people across the South. Its main argument is that LGBT people have been “relegated to a position of political powerlessness,” and should be afforded heightened scrutiny under Carolene Products.
49.            The Liberty Education Forum – Amicus is an organization committed to educating the public about the importance of freedom for all Americans regardless of their sexual orientation. Amicus argues that same-sex marriage bans unconstitutionally interfere with a person's First Amendment right to make political contributions by not affording same-sex couple’s access to political contribution spousal exemptions.
50.            American Psychological Association et. al. - Amici are leading associations of psychologists, physicians, and mental health professionals and argue that homosexuality is a normal expression of human sexuality and is generally not chosen and highly resistant to change.  They argue that gay men and lesbians form stable, committed relationships equivalent to heterosexual relationships, but that state marriage bans deny them the social, psychological, and health benefits that the institution of marriage provides. They also argue that child outcomes are affected by factors that are not dependent on either parental gender or sexual orientation.
51.            GLMA: Health Professionals Advancing LGBT Equality and American Academy of Nursing  – Amici write specifically to demonstrate the immutability of sexual orientation by sharing scientific research on the effect of fraternal birth order, prenatal hormone levels, as well as analysis of male genetic material, brain studies, and personal descriptions. Based on the immutability argument, amici urge the Court to apply heightened scrutiny to its review.
52.            American Public Health Association and Whitman-Walker Health -  Amici argue that marriage equality is a public health issue and that bans on same-sex marriage adversely affect the health of LGBT people by codifying structural stigma into society. There is a plethora of research linking social stigma to poor health.
53.            Family Equality Council et. al. – Amici include individuals and an organization that works to bring together LGBT couples, their children, and their families.  They argue that the issue before the Court is not “which types of families are best” but whether there is a legal basis for discriminating against the approximately 250,000 children currently being raised by same-sex couples in the United States. They also contend that the marriage restrictions also young LGBT people by entrenching the view that their sexual orientation renders them unfit to participate in the institution of marriage.
54.            Donaldson Adoption Institute et. al. – Amici are several non-profit organizations, including  that seek to improve child welfare and adoption policy and practice.  Amici argue that adopted children in states that prohibit same-sex marriage can suffer both concrete and psychological harms such as greater risks to their health and safety, disadvantages upon death/disability of a parent, and psychological stress from the instability of having only one legal parent. Moreover, the “optimal family” justification for marriage bans stigmatizes families with adopted children and same-sex marriage bans deter potential adoptive parents.
55.            National Family Civil Rights Center – Amicus is a national non-profit organization committed to enhancing the rights of children and their parents in all family relationships. Amicus argues that permitting same-sex couples to marry is consistent with Fourteenth Amendment jurisprudence, and stresses that denial of same-sex marriage unconstitutionally diminishes the rights of children of same-sex couples merely because of their parents’ sexual orientation and decisions made solely by their parents.
56.            379 Employers and Organizations Representing Employers – Amici comprise a broad range of companies from small businesses to Fortune 100 companies.  Amici argue that their businesses benefit from diversity and inclusion and to be able to reap the wards, employers need to be able to recruit and retain top talent through equitable and competitive benefits packages.  Marriage discrimination injures Amici’s businesses by (1) driving away talented individuals from their jurisdictions, (2) imposing significant burdens on their employees, (3) and undermining their corporate cultures.
57.            Law Enforcement Officers et. al. – Amici are law enforcement officers and first responders who argue that state bans on same-sex marriage are unconstitutional because gay and lesbian first responders living the states are treated unequally in their day-to-day work activities, and their families are not afforded the same protection upon their death. The court should apply heightened scrutiny but the bans are unconstitutional under any level of scrutiny.
58.            AFL-CIO et. al.  – Amici are two federations of labor organizations and the National Education Association, a nationwide education professionals employee organization.  Amici argue that same-sex marriage bans inflict economic injury on LGB workers and their families by impairing access to partner healthcare benefits, impeding access to critical programs in the event of illness, injury, or death, and imposing significant retirement burdens on them.
59.            American Federation of Labor and Congress of Industrial Organizations  – Amicus is a federation of 56 labor unions representing more than 12 million workers in the public and private sector.  It argues that same-sex marriage bans inflict many economic injuries on LGBT workers and their families because marriage plays a key role in determining eligibility for many workplace benefits.
60.            OutServe-Servicemembers Legal Defense Network and American Military Partner Association  – Amici, organizations that support LGBT current and former members of the US military and their families, argue that the current uneven patchwork of marriage equality states harms military families and undermines national security by placing the military at a competitive disadvantage in recruitment and retention and complicating the payment of veterans benefits.
61.            Freedom to Marry – Amicus is an organization devoted to same-sex marriage nationwide.  It argues that the Court should apply heightened scrutiny, or at least rational-basis-with-bite.  It argues that same-sex marriage bans are not rationally related to the purpose of procreation because no data suggests that same-sex marriage will inhibit opposite couples from procreating and raising stable families.
62.            Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE) et. al. -Amici are four national non-profit organizations dedicated to elder/aging issues.  Amici argue that state marriage bans particularly burden older same-sex couples who may not be able to travel to a marriage recognition state and who are especially dependent on spouse-linked government benefits.  In addition, amici point out that allowing older different-sex couples to marry despite being non-procreative while prohibiting older same-sex couples from marrying because they are non-procreative is highly irrational.
63.            Cleveland Choral Arts Ass’n a/k/a The North Coast Men’s Chorus – Amicus is a performing arts organization of gay men, which writes to share its members’ experiences of discrimination under Ohio’s same-sex marriage ban. Amicus argues that the existence of targeted animus against same-sex couples provides an independent basis for striking down such bans and includes several musical references in their argument point headings (e.g., “The Intangible Aspects of Marriage – R-E-S-P-E-C-T – Find Out What It Means To Me”).
64.            Equality Ohio et. al. – Amici are a non-profit lobbying organization and its non-profit educational partner, along with three couples represented by Equality Ohio.  They argue that the Ohio Constitution deprives same-sex couples of important rights and obligations, and that the Court of Appeals’ justifications for upholding its provisions cannot survive any standard of review because “tradition” and “encouraging responsible procreation” are not legitimate government interests.
65.            PFLAG, Inc. – Amicus is a national, non-profit organization that promotes the civil rights of LGBT persons, their families, and friends. PFLAG argues that marriage bans unconstitutionally humiliate the children and family members of same-sex couples, enshrining a notion of inferiority into the law that violates due process and equal protection. It argues that the marriage bans cannot survive even rational basis review because bans are not rationally related to a legitimate purpose.
66.            Marriage Equality U.S.A – Amicus is a national organization made up of approximately 40,000 same-sex couples,  LGBT people, and allies, with the goal of community-based educational efforts to obtain marriage equality nationwide.  It provides accounts of same-sex couples’ individual stories in an attempt to demonstrate why State marriage bans unconstitutionally infringe upon the fundamental right to marry.
67.            Garden State Equality  – Amicus is New Jersey’s largest organization advocating for the rights of LGBT people and their families and argues that civil unions are inadequate to protect same-sex couples.
68.            Mattachine Society of Washington D.C. – Amicus  is non-partisan research and educational society and argues that there is a well-documented history of animus against LGBT Americans that has impacted the proliferation of state same-sex marriage bans. 
69.            Langley Hill Friends Meeting, – Amici are several congregations of the Religious Society of Friends (Quakers) and argue that state laws which prohibit same-sex marriages unduly burden their religious freedom because they collide with their fundamental belief in equality and integrity and their desire to marry their members regardless of gender. 
70.            California Council of Churches et. al. – Amici are seven California-based religious organizations that argue that although civil marriage is a secular institution, the Court has held that its arbitrary restriction improperly abridges free exercise of religion, as the California Supreme Court held when striking down California laws against mixed-race marriages in Perez v. Sharp.  They conclude that marriage equality poses no threat to religious liberty.
71.            American Humanist Association and Center For Inquiry – Amici are two non-profit organizations, promoting humanist and atheist interests in equal application of the law and maintaining the separation of church and state.  First, they argue that marriage bans violate the Equal Protection Clause because sexual orientation classifications are suspect classifications requiring strict scrutiny, and there is not legitimate interest, much less a compelling one, to deny same-sex couples the fundamental right to marry.  Second, they emphasize that religious morality and traditions are invalid state interests which cannot justify invidious discrimination against same-sex couples.
72.            President of the House of Deputies of the  Episcopal Church et. al. – Amici include a number of religious groups, organizations, and leaders and nearly 2,000 individual clergy.  They argue that a wide cross-section of American religions recognize the dignity of lesbian and gay citizens’ relationships and families, and a growing number of faiths support civil marriage equality.  In addition, marriage equality will not prejudice religious belief or practice, but rather will prevent one set of religious beliefs from being imped through civil law.
73.            Americans United for Separation of Church and State – Amicus is a national, nonsectarian, organization dedicated to defending principles of religious freedom and the separation of church and state. It argues that religious objections to same-sex marriage have - - - and should have - - - no bearing on the constitutional issue of whether state same-sex marriage bans violate the Constitution.

74.            Survivors of Sexual Orientation Change Therapies – Amici are five survivors of so-called “sexual orientation change efforts” (“SOCE”).  They argue that sexual orientation is a suspect classification warranting strict scrutiny under the Equal Protection Clause because sexual orientation is an immutable characteristic (as demonstrated by the inefficacies of so-called SOCE), and LGBT people continue to experience widespread discrimination and prejudice.
75.            Kristin Perry et. al. – Amici are the four couples who successfully challenged California’s marriage ban in Hollingsworth v. Perry.  Amici argue that the right to marry is fundamental.  Further, Amici directs the Court to the trial record in Perry v. Schwarzenegger for confirmation that gay men and lesbians seek access to the same fundamental right to marry that the Court has long recognized.  Finally, Amici offer their perspectives on how marriage inequality impacts them.
76.            Ninety-Two Plaintiffs in Marriage Cases – Amici are ninety-two plaintiffs who have challenged the constitutionality of bans in their home states, including Alabama, Louisiana, and North Dakota. They argue that the “leave it to the States” approach inflicts tangible harms on LGBT couples living in states adverse to same-sex marriage because the prospect of achieving marriage in the states is simply not a reality; the Court should extend the protections of the Fourteenth Amendment to the inhabitants of all states.


 Briefs in Support of Respondents

 Law professors
1.              54 International and Comparative Law Experts from 27 Countries, and the Marriage and Family Law Research Project  – Amici are experts in international and comparative law and The Marriage and Family Law Research Project is an academic research center at Brigham Young University’s School of Law. Counsel of record is LawProf Lynn Wardle.  Amici argue that there is no basis to believe that there is an “emerging global consensus” in support of same-sex marriage and that only 17 of 193 member states of the United Nations have adopted the practice.
2.              Scholars of Originalism  – Amici are 8 LawProfs including Nelson Lund and Steven Smith who argue that bans on same-sex marriage do not contravene the original meaning of the Fourteenth Amendment and should be distinguished from class legislation.  They specifically disagree with the arguments of Amicus Cato Institute.
3.              100 Scholars of Marriage – Amici are scholars of marriage from various disciplines including pediatrics philosophy, and law, including ConLawProfs David Smolin and Dwight Duncan, who argue that man-woman marriage is more beneficial and that same-sex marriage undermines those benefits, evidenced by a drop in opposite-sex marriage when same-sex marriage is available.
4.              Earl M. Maltz et. al. – Amici are scholars of constitutional history and including Maltz, George W. Dent, Jr. and Christopher Wolfe joined by  the Marriage Law Foundation. They argue that limiting marriage to opposite-sex couples is deeply rooted in this Nation’s history and there should needs to be historical support before recognizing a substantive fundamental right under the Due Process Clause, even if the ruling in Glucksberg does not control.
5.              Scholars of the Welfare of Women, Children, and Underprivileged Populations  –  Authored by LawProfs Anthony Caso and Lynn Marie Kohm, for five scholars including Maggie Gallagher (founder of the National Organization for Marriage).  Amici argue that since its inception, marriage has been society’s best means of connecting men to the women who bear their children, providing “stability where there might otherwise be disorder.” They argue that like no-fault divorce, same-sex marriage weakens the social expectation that parents should remain together and negatively affects poor women and their children the most.
6.              Wyoming Legislators and Scholars of Full Faith and Credit – Amici consist of 16 state legislators in Wyoming, who support their state law defining marriage as the union of a man and a woman, and three law professors, including Jeffrey L. Rensberger who are concerned that Petitioners’ arguments risk compromising well-established conflicts-of-law principles.  Amici argue that because the Full Faith and Credit Clause does not compel states to recognize marriages that are contrary to their public policy, recognizing a sister-state marriage is a choice of law matter, subject to only very limited constitutional restraint.

[note:  See also late additions]
7.              Alabama - Amicus argues that it would continue to define marriage as solely between a man and a woman absent federal court decisions.  It contends that same-sex marriage bans should be evaluated under deferential rational basis scrutiny and not render rational basis review indistinguishable from heightened scrutiny.
8.              South Carolina  – Amicus argues that in interpreting the Fourteenth Amendment the Court must first look to the original intent of the drafters, who intended that marriage laws would be the exclusive province of the State. The framers of the Constitution did not conceive of marriage as anything besides the union of one man or one woman. The Court should rule consistent with the intent of the original framers and should resist codifying a new constitutional right protected by the Fourteenth Amendment.
9.              Robert J. Bentley, Gov. of Alabama – Amicus argues that a State's interest in ensuring the rights of its children can only be protected by limiting the institution of marriage to opposite-sex couples. It also argues that same-sex marriage is a “social product” and an experiment to affirm the “sexual desires and choices of adults.” To rule for Petitioners would dismantle the State's sovereign power over matters of marital relations.
10.            Idaho Governor C.L. “Butch” Otter– Amicus is the current sitting Governor of Idaho and argues that while the marriage laws at issue should be judged under a rational basis standard, they also satisfy heightened scrutiny because states have a compelling interest in preserving the child-centric social norms associated with “man-woman marriage.” He further argues that the states should be free to make such determinations.
11.            57 Members of U. S. Congress  – Amici curiae are 57 members of the U.S. Senate and U.S. House of Representatives. Amici argue that a ruling for Petitioners would undermine the values of federalism and separations of powers, and would circumvent the democratic process. The Court should further decline to effectively legislate novel issues of domestic policy. Further, seven principles of separation of powers and federalism requires this Court to rule for Respondents.
12.            Leaders of the 2012 Republican National Convention Committee on the Platform, et al. – Amici are Committee Co-Chairman Marsha Blackburn and Co-Chairmen of the Subcommittees on marriage and family, James Bopp, Jr. and Carolyn McLarty.  Amici argue that “traditional marriage” and family are the foundations of a free society, minimizing the need for government programs and intrusion by certain inherent characteristics (stability, independence, self-sufficiency, and self-perpetuation).  Therefore, they argue, states have important interests in promoting marriage between a man and a woman that do not translate to same-sex unions, and denying equal marriage recognition does not rest on animus against LGB people.

[note:  See also late additions]
13.            Dr. Paul McHugh – Amicus is a professor of psychiatry at Johns Hopkins University School of Medicine and argues that sexual orientation is neither a clearly definable (discrete) nor immutable characteristic.
14.            Professor Daniel N. Robinson – Amicus is a scholar of philosophy and argues that there is no settled understanding of the nature of homosexuality and there can be no firm scientific position on how it should be understood within the cluttered arena of psychiatric theory and practice.
15.            Scholars of History and Related Disciplines – Amici are 11 scholars of history, social sciences, and civics who argue that the traditional definition of marriage is between opposite-sex couples and also reflects the fact that only opposite-sex couples can procreate naturally.
16.            Ryan T. Anderson – Amicus is a scholar of natural law who argues that the conjugal view of marriage is reasonable that and redefining marriage as a simple romantic emotional union undermines the conjugal rational for marriage.
17.            47 Scholars – Amici are 47 scholars of various disciplines, including law, government, philosophy, history, and the natural and applied sciences who argue that the Constitution leaves the policy question at issue to the ordinary political process.  Amici argue that marriage serves a specific child-focused purpose which is not served by same-sex couples.  Although LGB people deserve equal dignity, that in and of itself does not constitutionally require a redefinition of key social institutions.  Amici conclude by arguing that because LGB people are free to pursue romantic relationships unhindered by discrimination after Romer and Lawrence, the marriage bans do not deprive them of liberty.
18.            Scholars of Fertility and Marriage –  Amici are two professors, Dr. Jason Carroll, Professor of Family Life at Brigham Young University ,and Dr. Walter Schumm, Professor of Family Studies at Kansas State University.  Amici argue that redefining marriage would undermine the critical social norm linking marriage with procreation, resulting in a decrease to the United States” already below-replacement level fertility rate, which will bring to the country a range of socioeconomic problems.
19.            Judicial Watch – Amicus is a non-profit educational foundation that seeks to promote integrity, transparency, and accountability in government and fidelity to the rule of law.  Amicus argues that because defining marriage is within the states’ sovereign sphere of marital relations, and because marriage definition laws pass the rational basis test, there has been no constitutional violation.  Moreover, requiring recognition of out-of-state marriages that conflict with state law would lead to constitutional conflicts.
20.            Family Trust Foundation of Kentucky – Amicus is a foundation committed to ensuring that family remains intact from one generation to another. It argues that same-sex marriage bans are rationally related to the biological ability of opposite-sex couples to procreate and are not based on animus.
21.            Foundation for Moral Law  – Amicus is a national public-interest organization based in Montgomery, Alabama dedicated to promoting a return to Originalism and defending the right to acknowledge God as the moral foundation of our laws and justice system, closely associated with Judge Roy Moore. Amicus argues that because same-sex marriage was “inconceivable” in Anglo-American common law, and homosexuality has been strongly disapproved of until recently, the Court should exercise restraint and not make same-sex marriage a constitutional right. 
22.            Mike Huckabee Policy Solutions and Family Research Institute –  Amici are two nonprofits organizations: a Colorado corporation formed to support the national policy aims of Mike Huckabee, former Governor of Arkansas and a non-profit scientific and educational organization that conducts and publishes empirical research on drug abuse, HIV-AIDS, the safety of the U.S. blood supply, sexual social policy, and public health.  Amici argue that normalizing homosexual unions would harm American young people and U.S. public health, citing empirical studies showing higher mortality rates for LGB people.  Therefore, a rational basis exists for defining marriage as between a man and a woman.  Finally, amici cite empirical studies to argue that sexual orientation is neither inborn nor immutable.
23.            Organization and Scholars of Gender-Diverse Parenting –  Amici are public policy groups and scholars with interests and expertise in child welfare and parenting.  Amici include CitizenLink, a nonprofit cultural action organization that serves 40 state-based Family Policy Councils; Focus on the Family, a nonprofit religious corporation dedicated to helping families thrive; and four scholars.  Amici argue that empirical evidence shows that children benefit from the unique parenting contributions of both men and women, providing a rational and compelling basis for states to limit marriage to the union of one man and one woman.
24.            Texas Eagle Forum and Steven F. Hotze, M.D. – Amici are a non-profit organization and its founder, Steven Hotze, dedicated to enabling pro-family and conservative residents of Texas to participate in the making of public policy. Amici argue that recognizing same-sex marriage as a constitutional right would fracture the nation into social conflict along regional lines that would as divisive as that which occurred after Roe v. Wade.
25.            Tri Valley Law, P.C.– Amicus is a law firm with a focus on constitutional law and issues of federalism. Amicus argues that public opinion in support of same-sex marriage has not changed enormously, and that a shift in thinking has occurred mostly through the rulings of an unelected judiciary. Further, Amicus’ brief largely focuses on census data regarding attitudes in opposition to same-sex marriage, rather than arguments grounded in legal jurisprudence, to argue that their has not (in fact) been an enormous change in attitudes regarding same-sex marriage. Amicus also argues that a ruling for Petitioners would dismantle important notions of federalism.
26.            American Family Association-Michigan – Amicus is an affiliate of the American Family Association (“AFA”), an institution dedicated to preserving traditional values of marriage. Amicus argues that the Michigan Marriage Protection Amendment (“MMPA”) codifies the definition of marriage as between one man and one woman. The amendment was enacted to preserve the fundamental characteristic of marriage from the “threat of extinction” posed by attempts to expand its access to same-sex couples. Further, a ruling for Petitioners would abrogate the States’ authority to define marriage, and would influence an issue of public policy best left to be resolved by the People and their legislators.
27.            Southeastern Legal Foundation  – Amicus is a non-profit law firm specializing in public interest law and seeking to protect constitutional liberty interests. Amicus argues that the Court should exercise judicial restraint in this case to ensure the preservation of the States’ sovereign authority to define marriage, which is fundamentally an issue of public policy. The brief further argues that the framers cautioned against judicial advocacy upon issues best left to the legislature.
 28.            Committee for Justice– Amicus  is a non-profit organization dedicated to advancing the rule of law and argues it is impossible for the Court to answer the issue presented without first defining marriage as an institution extrinsic to the Constitution. Amicus also argues that the Court should reject the consent definition of marriage because it poses considerable legal and “line-drawing” problems, as it runs counter to statutes that prohibit bigamy and incest.
29.   - Yes on 8 et. al. – Amici include the organization that was formed in support of Proposition 8 in California in 2008, and founders Dennis Hollingsworth, Martin Gutierrez, and Mark Jansson as the proponents of proposition 8.  They were involved in Hollingsworth v. Perry.  Amici argue that opposing same-sex marriage subjects individuals to considerable harassment nationwide, and the Court should decline to view opposition to same-sex marriage as inherently bigoted, irrational, or based in impermissible animus because it would only further subject such opponents to severe harassment.
30.            Institute for Marriage and Public Policy et. al. – Amici include the Institute for Marriage, a non-profit organization dedicated to strengthening marriage as a social institution, and North Star Law and Policy Center, an alliance of Minnesota attorneys dedicated to advocating for opposite-sex marriage. Amici argue that the Court should reject the social science studies put forth by Petitioners and should instead decide this case based solely on law, arguing that the Court has recognized that expert opinions threaten the integrity of the legal system and that social sciences are largely shaped by political influences. Amici also argue that the effects of same-sex marriage on children, family, and society are unknown and largely unknowable.
31.            Concerned Women for America – Amicus curiae is the largest public policy women’s organization in the U.S. Amicus argues that homosexuality is not a suspect class warranting heightened scrutiny because homosexual individuals have significant political power. Homosexual individuals have “attracted the attention” of lawmakers on the State and Federal level and have significant political and media allies. As such, heightened scrutiny is inappropriate.
32.            Texas Values  – Amicus is dedicated to advancing faith, family and freedom through policy research. It argues that it is inappropriate for the Court to decide a fundamental policy issue and that heightened scrutiny is inappropriate, because this issue should be left to the democratic process.
33.            Lighted Candle Society – Amicus is a non-profit corporation that promotes the enforcement of obscenity laws and that supports traditional values. Amicus highlights the importance of opposite-sex marriage by framing marriage as necessary for the continuance of our society. Amicus further argues that the Court should apply rational-basis scrutiny because same-sex marriage is not a fundamental right that is deeply rooted in this nation’s history and traditions.
34.            Public Advocate et. al.–  Amici nonprofit organizations Public Advocate of the U.S., The Abraham Lincoln Foundation, U.S. Justice Foundation, The Lincoln Institute, Conservative Legal Defense and Education Fund,  and Institute on the Constitution, as well as Joyce Meyer Ministries (a church) and Pastor Chuck Baldwin (the Constitution Party 2008 candidate for President).  Amici argue that same-sex marriage is not mandated by the Fourteenth Amendment and that same-sex marriage would result in serious harms including closure of religious adoption agencies, foreclosing preaching and counseling against homosexuality, legalizing multiple-partner and incestuous marriages, mandating businesses cater to homosexual couples, and undermining the created male-female order.
35.            North Carolina Values Coalition – Amici are non-profit corporations dedicated to preserving religious liberty, family, and other moral principles and argue that marriage is fundamentally the union between one man and one woman based on the immutable facts of biology.  Any articulation of a fundamental right to marriage must adhere to the traditional meaning.
36.            Family Research Council – Amicus is an organization dedicated to the promotion of marriage, family, and the sanctity of human life in national policy.  It argues the fundamental right to marry is limited to opposite-sex couples.  It also argues that statutes banning same-sex marriage do not discriminate on the basis of sexual orientation because they are facially neutral with respect to a person's sexual orientation; the fact that they might have a disparate impact on gay and lesbian individuals is irrelevant without evidence that they were adopted with the intent or purpose of discriminating.
37.            Public Affairs Campaign Opinion Expert Frank Schubert & National Organization for Marriage  – Amici consist of public affairs campaign consultant Frank Schubert, who managed the state ballot initiatives in CA, ME, NC, MD, MN, and WA to define marriage as between a man and a woman as well as the national non-profit he consults for, the National Organization for Marriage.  Amici argue that the Court should not intervene in what is currently a heated political and policy debate.  They present survey data showing that a majority of Americans support traditional marriage and emphasize that the issue should be left to the people, not the courts, to make this policy judgment.
38.            American College of Pediatricians et. al. – Amici consist of the American College of Pediatricians (ACP), a non-profit organization of pediatricians and healthcare professionals dedicated to the health and well-being of children; Family Watch International (FWI), an international non-profit working to preserve the family based on marriage between a man and a woman; and Loren D. Marks, Mark D. Regnerus, and Donald Paul Sullins, three scholars who have studied and published on parental and household distinctions and their association with developmental outcomes in children.  Amici argue that the alleged consensus that children of same-sex parents suffer no disadvantage is a product of politicized research agendas rather than objective scientific inquiry.  They highlight several methodological flaws in such findings, rendering only four of the dozens of studies valid.
39.            Parents and Friends of Gays & Ex-Gays – Amicus “PFOX” is a national non-profit organization that has supported many thousands of families of individuals with unwanted same-sex attraction and contends that sexual orientation is a fluid, transient, personal characteristic rather than immutable.  It offers the narratives of ex-gays, arguing that the ex-gay community is subject to more animus than any other minority group.
40.            The Ruth Institute and Dr. Jennifer Roback Morse – Amici consist of an inter-faith organization based in San Diego and its founder and President, an economics professor. Amici argue that the purpose of marriage is to attach mothers and fathers to their children and each other and opposite-sex marriage produces the best social outcomes for children.
41.            American Freedom Law Center – Amicus, a national public interest law form that defends America’s Judeo-Christian values, argues that the rational basis for defining marriage as limited to one man and one woman is biology. 
42.            Michigan Catholic Conference  – Amicus argues that marriage is unique because of its God-given nature and is only a fundamental right under the Fourteenth Amendment because of its procreative possibilities.
43.            United States Conference of Catholic Bishops  – Amicus  is a non-profit corporation of the active Catholic Bishops of the United States.  Amicus argues that it supports the legal definition of marriage as the union of one man and one woman and that same-sex marriage bans are not based in bigotry or animus, but distinguish on the basis of conduct. 
44.            Catholic Answers– Amicus is the largest lay-run organization dedicated to Catholic apologetics and evangelization in the U.S. It argues that sexual orientation does not fit within the Equal Protection framework because systemic societal discrimination against LGB people has had a very short history, that LGB people have achieved great political power, and that sexual orientation is neither immutable nor discrete.  Further, it argues that religious liberty is a fundamental right that directly conflicts with sexual orientation protections, and recognizing sexual orientation as a suspect class will legally undermine the ability of many religious people to live their faiths.
45.   Education Fund – Amicus is a “nonpartisan voter education program devoted to building a culture that respects the sanctity of life, religious liberty, marriage, and the family.”  Amicus argues that history and tradition, precedent, and the lessons of experience dictate that there is no basis to declare a constitutional right to same-sex marriage under the Fourteenth Amendment.  Amicus also argues that federalizing the definition of marriage would contradict the principles of democratic self-government and federalism.
46.            Major Religious Organizations   –  Amici are the National Association of Evangelicals; The Church of Jesus Christ of Latter-day Saints; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; The Lutheran Church – Missouri Synod; the Assemblies of God; the Christian Legal Society; The Brethren Church; The Christian and Missionary Alliance; the Church of God, Cleveland, Tennessee; Converge Worldwide; the Evangelical Congregational Church; the Evangelical Presbyterian Church; The Fellowship of Evangelical Churches; the Free Methodist Church – USA; Grace Communion International; the International Pentecostal Holiness Church; The Missionary Church; Open Bible Churches; and The Wesleyan Church.  Amici argue that traditional marriage is central to the faith and personal identity of millions of religious Americans and highlight negative effects of voiding the same-sex marriage bans.  First, voiding the bans on grounds of animus would both stigmatize and demean religious organizations and believers and would deny them their constitutional rights.  Second, voiding the bans on other grounds would generate conflicts with religious liberty.
47.            National Coalition of Black Pastors and Christian Leaders –  Amici represent over 25,000 churches and ministries across the country.  Amici argue that Loving v. Virginia does not require recognition of same-sex marriage because of the unique experiences of discrimination faced by Black Americans in our history.  They argue that the Court should not supplant deeply rooted moral and legal traditions with its own “personal moral relativism.”  And they argue that the marriage bans pass rational basis review.
48.            Jason Feliciano and Seventeen Pastors– Amici are Ohio based ministers and pastors from multiple denominations. Amici argue that the institution of marriage predates the inception of the State or Federal government. The brief further argues that multiple religious denominations have recognized marriage as the union of one man and one woman since antiquity. The Court should not be deciding issues of public policy, and amici reminds the Court that multiple international jurisdictions have taken actions consistent with limiting marriage to the union of heterosexual couples, recognizing the legitimate rationale that only men and women can, together, biologically create a child.
49.            Religious Organizations, Public Speakers, and Scholars Concerned About Free Speech  –  Amici are six ministries, three seminaries, and eleven scholars who support the First Amendment rights of Christian ministers, teachers, and leaders to voice their religious view that marriage is between one man and one woman.  Amici frame their concern within a history of Christian dissent.  Amici argue that many religious dissenters have been actively silenced or at least chilled into silence in the same-sex marriage debate. Imposing same-sex marriage nationwide would exacerbate these conflicts.
50.            International Conference of Evangelical Endorsers   – The International Conference of Evangelical Chaplain Endorsers is a conference of evangelical organizations whose main function is to endorse Christian chaplains to the military and other organizations requiring chaplains. It argues that the ensuing conflict between a right to same-sex marriage and the First Amendment would undermine the respect due the “rule of law,” an important part of military culture, and cast doubt about the meaning of the Constitution military members fight to defend.

[note:  See also late additions]

 51.            Dawn Stefanowicz and Denise Shick– Amici are two adult children of same-sex couples who argue that same-sex parenting harms children because children are forced to witness the sexual or gender confusion of their parents and highlight their respective negative experiences of having a highly abusive homosexual father and highly abusive transgender father.
52.            Heather Barwick and Katy Faust – Amici are two adult children of same-sex couples who argue that redefining marriage will violate children's rights to know their biological parents and undermine the foundational building blocks for child development.
53.            Larry S. Larson – Amicus is a practicing lawyer and highlights the unique interest in this litigation of the five states that provide same-sex couples “everything but marriage” and argues that there is no fundamental right to the  “reputational value” of marriage.
54.            Jon Simmons  – Amicus is a commercial property owner who claims that his property and personal interests are impacted by this case. Amicus argues (without citing any legal or factual authority) that homosexuality is a dysfunctional characteristic of trauma and that institutionalizing it in the form of marriage would be a disservice to “those who would leave it” by encouraging them to embrace it. Amicus also implies a choice in one’s sexual attraction, arguing that the Court should decline to extend marriage to homosexual persons in order to discourage persons from becoming attracted to the same-sex.
55.            David A. Robinson – Amicus is a 62-year-old lawyer residing in Connecticut who argues that same-sex marriage effectively legalizes family (incestuous) marriages.
56.            Algirdas M. Liepas– Amicus describes himself as a Christian, a husband and a father, and an attorney practicing in Colorado and Wyoming.  Amicus argues that the marriage bans cannot be found unconstitutional because such a holding would restrict the ability of states to effectively regulate “the most important aspect of American society.”  Second, he argues that the interests of the states in regulating marriage are great enough to justify not recognizing same-sex marriages from other states.
57.            Robert Oscar Lopez and B.N. Klein – Amici are two professors who were raised by lesbian mothers and argue that same-sex marriage bans protect the children of gays (“COGs”) and women by preventing their estrangement them from their fathers and children, respectively.
58.            Richard A. Lawrence –  Amicus is a man who has been married to the same woman for 45 years.  Amicus first argues that the Court lacks jurisdiction to hear the case, since federal courts do not have Article III power to hear domestic matters, and the case lacks a substantial federal question.  Amicus next distinguishes this case from Lawrence, arguing that just because the Court in Lawrence acknowledged a private right does not mean that states cannot regulate a public institution.  Finally, amicus argues that the matter should be left to the States and the democratic process.  


59.      Louisiana et. al. - Amici are 15 states including Louisiana, Utah, Texas, Alaska, Arizona, Arkansas, Georgia, Idaho, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, and West Virginia that argue that determining the meaning of marriage is a "fundamental exercise" of state citizens and should not be determined as a constitutional matter by the Court.
60.    Liberty Center for Child Protection et. al - Amici are an organization and its director, Dr. Judith Resiman, an expert on Dr. Alfred Kinsey.  Amici argue that changing the legal definition of man-woman marriage should not be based on Kinsey's research which was based on skewed demographics and sexual abuse of children.
61.     Rev. John Rankin – Amicus is the President of TEI International, Inc. a corporation dedicated to the biblical definition of human freedom and the religious, political, and economic liberty for all people and argues that the “Creator” is the source of rights.
62.     Same-Sex Attracted Men and Their Wives – Amici are 6 “same-sex attracted men” who offer their experiences of being married to women and argue that “same-sex attracted” men are therefore not excluded from marriage.
63.     Organizations That Promote Biological Parenting – Amici are two organizations, Family Policy Institute of Oklahoma and Christian Medical Association, that argue that children suffer when they are reared apart from, or deprived of a relationship with, their biological parents. They argue that state recognition of same-sex marriage leads to fewer two-parent biological families.
64.     David Boyle – Amicus is an attorney in California and argues that the recognition of same-sex marriage may violate children’s rights to a mother and father and that the diversity interest in Grutter v. Bollinger applies to gender-diverse parents.
65.     106 Members of the Kentucky General Assembly – Amici argue that the state has the right to define marriage as one man and one woman, that the long term effects of same-sex marriage are unknown, and that the state legislators and voters did not act out of animus in banning same-sex marriage.
66.     Liberty Scholars et. al. – Amici are three law professors, Teresa Stanton Collett; Lynne Marie Kohm [who authored the Brief forScholars of the Welfare of Women, Children, and Underprivileged Populations], D. Brian Scarnecchia, and Saint Thomas More Society of Dallas,  an organization of Roman Catholic attorneys.  Amici argue that while Lawrence v. Texas  is an “organic development of a century-old line of precedents stretching back to Meyer v. Nebraska,” an constitutional recognition of same-sex marriage would be contradict the right of natural parents to the care and education of their offspring.

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I am surprised and disappointed, given the number of amicus briefs, at two significant omissions. I gather from your summary, first, that there is no amicus brief on the respondents' (couples') side that refutes the contention (made in two top-side amicus briefs that you cite) that the federal courts lack jurisdiction under a proper interpretation of Article III's "case or controversy" language (the claim that marriage-related matters were within the exclusive jurisdiction of English ecclesiastical courts and thus outside the intended scope of Article III jurisdiction). (That view of Article III would not exempt marriage laws from equal protection challenge, but would steer such challenges to the state courts.) And second, no history-scholar amicus brief on the history of marriage, to discuss the extent to which the "definition" of marriage has been stable and unchanging (and tied, perhaps, to religious conceptions), as many of the petitioner-side arguments appear to contend or assume, or, on the other hand, has evolved along with changes in social norms (and has perhaps exhibited a varying secular definition independent of majority religious conceptions) .

Posted by: Peter G | Apr 17, 2015 11:24:55 AM

My second observation was incorrect. I somehow overlooked your #35, the amicus brief from a consortium of "historians of marriage" and the American Historical Association, authored by attorneys from the Akin Gump firm.

Posted by: Peter G | Apr 19, 2015 9:16:42 AM

Phyllis Schlafly -- still trying to ruin lives at 90. Thanks for the breakdown of the briefs!

Posted by: Brooke | Apr 28, 2015 7:18:41 AM

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