ARGUMENT
I.
THIS COURT’S DUE PROCESS DECISIONS PROTECT THE
FUNDAMENTAL RIGHT TO MARRY FOR ALL PEOPLE, INCLUDING
GAY AND LESBIAN COUPLES.
A. Ames Would Strip the Fundamental Right to Marry From All Couples Who
Cannot “Naturally” Procreate, but This Newfound Litmus Test Cheapens
Marriage And Conflicts With This Court’s Decisions.
Ames asserts that procreation is “at the heart of the fundamental right to
marry.” Respondent’s Br. 12. “[T]he link between [natural] procreation and
marriage” is not just a State interest, Ames insists, but is essential to marriage. Id. at
7. According to Ames, the Constitution first determines whether couples are
“naturally capable of producing offspring without outside assistance,” and then
protects all who pass this litmus test but none who fail. Id. at 2, 12. Ames’s resort to
marriage-as-procreation “singles out the one unbridgeable difference between samesex and opposite-sex couples and transforms [it] into the essence of legal marriage.”
Goodridge v. Dept. of Public Health, 798 N.E.2d 941, 962 (Mass. 2003).
This marriage-as-procreation canard crumbles on inspection. Among the very
opposite-sex marriages that Ames touts as “naturally capable of producing offspring
without outside assistance,” 100% with post-menopausal women cannot procreate,
and 48.1% with pre-menopausal women cannot procreate because at least one spouse
is infertile or sterilized. Fertility, Family Planning and Women’s Health: 1995, 23
Vital & Health Statistics, at 61 tbl. 51 (May 1997), at http://www.cdc.gov/nchs/data
/series/sr_23/sr23_019.pdf. Indeed, 13.7% of ever-married women who reached
menopause in 2000 never procreated either within or outside of their marriages. U.S.
-2Census Bureau, Children Ever Born per 1,000 Women, Percent Childless (2000), at
http://www.census.gov/population/socdemo/fertility/p20-526/tab02.txt.
Ames’s litmus test would deny the fundamental right to marry to all aged,
infertile, sterilized, or otherwise non-procreating couples. Moreover, just as the State
can dissolve sham marriages designed to secure green cards, Ames could dissolve
“sham” marriages that remain childless or rear only adopted, foster, and step children.
To avoid this draconian result, Ames argues that its test is not administrable for any
opposite-sex couples, and therefore denies marriage to only gay and lesbian couples.
Respondent’s Br. 30. But marriage applications can inquire about age, infertility, or
sterilization surgeries just as easily as about gender. See, e.g., Appendix at A-3,
Conn. Dep’t of Public Health, Premarital Certificate at Part II.4, formerly required by
Conn. Gen. Stat. § 46b-26 (repealed Oct. 2003) (marriage applicants either disclose
sterility or undergo blood tests). In fact, Ames’s own laws reveal that it rejects the
marriage-as-procreation argument it now urges upon this Court. Ames has never
required of marriage applicants the intent or ability to produce “natural” offspring,
and Ames has never nullified marriages that failed to yield “natural” offspring.
(R.14-16, 25) It is not logically possible that (i) “natural” procreation is essential to
marriage, while (ii) all barriers to procreation, except the one common to gay and
lesbian couples, neither prevent marriages at the outset nor serve as grounds for later
nullification.
Ames’s incoherent marriage-as-procreation argument fares no better under
this Court’s decisions. Ames asks this Court to “defend” marriage by undercutting
precedent that guarantees marriage as a fundamental right “for all individuals.”
-3Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (emphasis added). Contrary to
Ames’s assertion that procreation is essential to marriage, the Court’s most extensive
treatments of marriage link it with devotion and intimacy. Griswold v. Connecticut
defines marriage as an intimate association that involves “harmony of living” and
“bilateral loyalty.” 381 U.S. 479, 486 (1965). Like another landmark case, Roe v.
Wade, 410 U.S. 113 (1973), Griswold separates marriage from procreation, holding
that the right to marital privacy includes the right not to procreate. Id. at 485-86.
Marriage, according to this Court, is far more than the State’s breeding pen.
Ames also misunderstands Zablocki, Respondent’s Br. 8, in which this Court
states, “the decision to marry has been placed on the same level of importance as
decisions relating to procreation, childbirth, child rearing, and family relationships.”
434 U.S. at 386. First, Zablocki ranks marriage not below but “on the same level of
importance” as these four liberty interests, only one of which is procreation. Gay and
lesbian couples, just like all other couples, make daily decisions about family
relationships, child rearing, and childbirth. Second, Ames ignores Zablocki’s other
passages that list even more characteristics of marriage unrelated to procreation:
marriage is “the most important relation in life,” “essential to the orderly pursuit of
happiness,” an association that promotes “a bilateral loyalty,” and “among the
personal decisions protected by the right to privacy.” Id. at 383-86.
Although Ames contends that “[t]he right to marriage in Turner[ v. Safley] . . .
was linked to procreation,” Respondent’s Br. 12, Turner never mentions procreation
in its treatment of marriage. 482 U.S. 78 (1987). Instead, Turner lists “important”
and “significant” attributes of marriage: “emotional support and public commitment,”
-4“religious faith [and] . . . personal dedication,” physical consummation, and the
ability to enjoy legal benefits. Id. at 95-96. A unanimous Court held that these
attributes “are sufficient to form a constitutionally protected marital relationship in
the prison context.” Id. at 96. Conceding that petitioners “doubtlessly” participate in
these attributes, Respondent’s Br. 10, Ames is forced to conclude that these attributes,
outside the prison context, are not sufficient to form a constitutionally protected
marital relationship. Respondent’s Br. 10-11. This tortured reasoning leads to the
improbable conclusion that imprisoned criminals enjoy greater marital rights than
free, law-abiding citizens. The correct application of Turner is plain. If imprisoned
criminals can participate in the attributes of marriage in a way “sufficient to form a
constitutionally protected marital relationship,” 482 U.S. at 96, then the same is true
of petitioners, law-abiding citizens who Ames admits do participate in marriage’s
attributes.
B. Lawrence v. Texas Requires the State to Respect the Personal Relationships of
Gay And Lesbian Couples, And, in the Context of Marriage, Respect Means
Legal Recognition.
Ames’s theory – Lawrence v. Texas is about only non-interference with sex –
calls to mind Lawrence’s bare facts but cannot account for the opinion itself, which
instead concentrates on the right to demand respect for the vital decisions that shape
one’s life. 539 U.S. 558 (2003). This Court makes plain that Lawrence not only
overturned precedent, but also removed a stigma: gays and lesbians can “demand
respect” for their intimate relationships so that “[t]he State cannot demean their
existence or control their destiny.” Id. at 578. Ames asks this Court to bleed dry this
right to demand “dignity and respect” until only the right to be let alone survives.
-5Respondent’s Br. 12-14. Lawrence itself, however, extends the “right to demand
respect” beyond sex acts to “personal bond[s] that [are] more enduring.” 539 U.S. at
567.
The fundamental right to marry, like the right to vote and assistance of
counsel, is an empty guarantee without affirmative State action. See Smith v.
Allwright, 321 U.S. 649, 651 (1944) (requiring Texas to provide primary ballots to
black citizens); Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963) (requiring states
to provide counsel for indigent criminal defendants). Non-interference suffices to
protect the use of contraception and private sex, for the State is not the sole distributor
of contraceptives, and the State plays no role in sex. But the sine qua non of civil
marriage is State approval. Boddie v. Connecticut, 401 U.S. 371, 376 (1971). The
State does not allow couples to marry in the privacy of their bedrooms, or local
pharmacies to dispense marriage licenses. With monopoly power over civil marriage
comes the responsibility to respect equally its citizens’ vital decisions about marriage.
See id. Ames’s total denial of “the most important relation[ship] in life,” Maynard v.
Hill, 125 U.S. 190, 205 (1888), to its gay and lesbian couples interferes with their
personal dignity and liberty, just as surely as the possibility of criminal sanction under
Texas’s rarely enforced statute, Lawrence, 539 U.S. at 575.
This Court rejects Ames’s claim that an unbridgeable chasm separates the
fundamental rights that require State non-interference from the fundamental right to
marry, which requires State recognition. Respondent’s Br. 2-3, 15. Zablocki
recognized that “the decision to marry has been placed on the same level of
importance as decisions relating to procreation, childbirth, child rearing, and family
-6relationships.” 434 U.S. at 386. “[I]t would make little sense” to protect these
negative rights and to deny the positive right to marry. Id. The Court’s analysis
refutes the claim that State non-interference in one’s home and family in no way
supports the right to marry. On the contrary, the liberty that protects intimate and
family bonds “must imply some right to enter the only [institution]” that gives these
relationships their highest meaning. Id.
C. Even If the Right to Marry This Court Has Protected in the Past Did Not Include
Gay and Lesbian Couples, This Court Should Enlarge the Right to Marry to
Include Them, Just as It Has Enlarged Constitutional Protection for Sexual and
Family Relationships.
Ames’s claim that tradition alone determines which liberty interests our
Constitution protects, Respondent’s Br. 17-19, scorns this Court’s landmark due
process decisions, which overturned traditions of pervasive State regulation. See,
e.g., Lawrence, 539 U.S. 558; Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833 (1992); Carey v. Population Servs., Int’l, 431 U.S. 678 (1977); Roe, 410
U.S. 113; Loving v. Virginia, 388 U.S. 1 (1967); Griswold, 381 U.S. 479. These
decisions hew to the Constitution’s regard for every individual as the author of her
life, respecting her choices about relationships that determine how and with whom
she will live.
Just as this Court has expanded its protection of sexual intimacy and family
relationships, it should protect the life-commitments of gay and lesbian couples. See,
e.g., Lawrence, 539 U.S. 558; Moore v. City of East Cleveland, 431 U.S. 494 (1977)
(upholding the right to live with one’s extended family); Stanley v. Illinois, 405 U.S.
645, 651-52 (1972) (“the integrity of the family unit” does not depend on parents’
marital status). For all individuals – gay, lesbian, or straight – “the decision whether
-7and whom to marry is among life’s momentous acts of self-definition.” Goodridge,
798 N.E.2d at 955. This Court’s decisions protect choices about relationships that,
“by their nature, involve deep attachments and commitments to the necessarily few
other individuals with whom one shares not only a special community of thoughts,
experiences, and beliefs but also distinctively personal aspects of one’s life.” Roberts
v. Jaycees, 468 U.S. 609, 619-20 (1984). This Court should enlarge the fundamental
right to marry to include gay and lesbian couples in the institution that enriches sexual
intimacy, transforms legal strangers into established families, and sustains
commitments to care for one’s partner and children.
II.
RUBBER-STAMP REVIEW OF LAWS THAT EXCLUDE GAY AND
LESBIAN COUPLES FROM MARRIAGE IGNORES THIS COURT’S
PRECEDENT AND MISTREATS INTIMATE RELATIONSHIPS AS
MERE ECONOMIC INTERESTS.
Ames’s defense of DOMA under the Equal Protection Clause hinges on its
dubious pronouncement that “heightened rational basis review does not exist.”
Respondent’s Br. 24. Ames suggests that there is only one form of rational basis
review: the extremely permissive rule this Court applies to economic regulations,
from Williamson v. Lee Optical, 348 U.S. 483 (1955), to FCC v. Beach
Communications, 508 U.S. 307 (1993). Ames notes that Lee Optical’s highly
deferential rational basis rule (i) precludes “courtroom factfinding” and judicial
review of legislative ends, (ii) upholds “underinclusive and overinclusive”
classifications “based on rational speculation unsupported by evidence or empirical
data,” and (iii) credits “any reasonably conceivable state of facts” that might support
the classification. Respondent’s Br. 27.
-8But this characterization of rational basis review as a universal rubber-stamp
ignores thirty years of precedent and commodifies petitioners’ lifelong relationships
as if they were opticians’ licenses or cable television facilities. This Court defined
the scope of heightened rational basis review in Eisenstadt v. Baird: to survive, “[a]
classification must be reasonable, not arbitrary, and must rest upon some ground of
difference having a fair and substantial relation to the object of the legislation.” 405
U.S. 438, 447 (1972) (internal citations omitted); see Petitioners’ Br. 26. Numerous
decisions apply heightened rational basis review when laws (i) significantly inhibit
personal relationships, (ii) categorically exclude a group of people from the
protections of our law, or (iii) target a politically unpopular group for disfavor.
Petitioners’ Br. 27-32. DOMA contains all three defects. Id. Ames’s sole defense is
that DOMA survives this Court’s most deferential form of judicial review,
Respondent’s Br. 26-33, but Ames cannot justify DOMA under any form of
heightened review.
A. A Majority of the Justices of This Court And Several Circuit Courts Recognize
Heightened Rational Basis Review.
Ames denies what a majority of the Justices of this Court recognize: there is
more than one form of rational basis review. See United States R.R. Ret. Bd. v. Fritz,
449 U.S. 166, 177 n.10 (1980) (Rehnquist, J., writing for the majority) (“The most
arrogant legal scholar would not claim that all of these [rational basis cases] applied a
uniform or consistent test under equal protection principles.”); Lawrence, 539 U.S. at
580 (O’Connor, J., concurring) (“[W]e have applied a more searching form of
rational basis review to strike down [laws intending to harm politically unpopular
groups or inhibiting personal relationships] under the Equal Protection Clause.”);
-9United States v. Lopez, 514 U.S. 549, 608 (1995) (Souter, J., dissenting) (“[T]he
Court treats deference under the rationality rule as subject to gradation according to
the commercial or noncommercial nature of the immediate subject of the challenged
regulation.”); Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 451 (1985)
(Stevens, J., concurring) (“[O]ur cases reflect a continuum of judgmental responses.
. . . I have never been persuaded that these so-called ‘standards,’ [which range from
‘strict scrutiny’ to ‘rational basis,’] adequately explain the [decisions].”); Ruth Bader
Ginsburg, An Open Discussion with Ruth Bader Ginsburg, 36 Conn. L. Rev. 1033,
1045-46 (2004) (“I would not assign heavy weight to the labels [in equal protection
decisions.] The decisions are often reached without resorting to preconceived labels,
and then fitted into the tiers.”). Justices Kennedy and Breyer also apply heightened
rational basis review without announcing its presence. See Romer v. Evans, 517 U.S.
620 (1996) (Kennedy, J., writing for the majority and joined by Breyer, J.).
Ames observes that this Court has not invoked the talismanic phrase
“heightened rational basis review,” but this confuses form for substance. As Judge
Posner explains,
“rationality” in the law of equal protection is not in fact a single
standard . . . . We should follow what the Supreme Court does and not
just what it says it is doing. . . . Previous decisions of this court and
other courts of appeals have recognized that the Cleburne line of cases
expands the boundaries of ‘rationality’ review.
Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 768-70 (7th Cir.
2003) (Posner, J., dissenting). Regardless of labels, several federal circuits recognize
heightened rational basis review. See, e.g., Futernick v. Sumpter Township, 78 F.3d
1051, 1057 (6th Cir. 1996) (Cleburne and Plyler announce that “slightly heightened
- 10 ‘rational basis’ scrutiny is given to suspicious classifications”); Brown v. Barry, 710
F. Supp. 352, 355 (D.C. Cir. 1989) (recognizing that rational basis in Cleburne
“represents a departure from the extreme deference accorded legislative bodies in the
past”); Eisenbud v. Suffolk County, 841 F.2d 42, 45 (2d Cir. 1988) (placing Cleburne
and Plyler within a list of various formulations of heightened scrutiny between
deferential rational basis and strict scrutiny).
B. Under Heightened Rational Basis Review, This Court Questions the Legitimacy
of the State’s Ends And Examines the Fit Between Those Ends And the Chosen
Means.
Ames suggests that heightened rational basis review is an “amorphous,
untested standard.” Respondent’s Br. 26. But this Court’s decisions guide the use of
heightened review to assess (i) the legitimacy of DOMA’s ends and (ii) the rational
relation between those ends and the chosen means – denying marriage to gay and
lesbian couples.
Under heightened rational basis review, this Court shifts the burden to the
State to prove that its classification is rational. Eisenstadt, 405 U.S. at 447, 449 (The
State must prove that a law “riddled with exceptions” is “rational” rather than
“arbitrary.”); Cleburne, 473 U.S. at 450 (1985) (“The City never justifies its apparent
view that other people can live under such ‘crowded’ conditions when mentally
retarded persons cannot.”) (internal citations omitted); Plyler v. Doe, 457 U.S. 202,
229 (1982) (The State “must support its selection of this group as the appropriate
target for exclusion.”) (emphasis in original). Second, this Court invalidates
substantially over- and under-inclusive classifications. Romer, 517 U.S. at 633
(striking down Amendment 2 as “at once too narrow and too broad”); see also,
- 11 Eisenstadt, 405 U.S. at 450-51, 454 (1972) (invalidating an “underinclusi[ve]” and
“overbroad” law). Third, this Court requires the State to justify its classification with
more than “vague, undifferentiated fears,” Cleburne, 473 U.S. at 449, or “a bare
[legislative] desire to harm,” United States Dep’t of Agric. v. Moreno, 413 U.S. 528,
534 (1973).
Furthermore, this Court declines to speculate about “any reasonably
conceivable state of facts” that might justify the challenged law. Compare Lee
Optical, 348 U.S. at 487-90 (justifying the law by envisioning seven accounts of what
“the legislature might think”) with Romer, 517 U.S. at 633 (declining to speculate
about possible purposes of a law that “declar[es] that in general it shall be more
difficult for one group of citizens . . . to seek aid from the government”); Cleburne,
473 U.S. at 450 (refusing to indulge the City’s speculations about why density
regulations should apply to only the mentally retarded); Plyler, 457 U.S. at 228
(refusing to speculate about how Texas’s law to discourage immigration could be
anything more than “ludicrously ineffectual”); Moreno, 413 U.S. at 534 (declining to
speculate beyond the government’s asserted purposes, which “clearly cannot
[sustain]” the challenged classification); Eisenstadt, 405 U.S. at 449 (declining to
speculate about possible purposes for a law “riddled with exceptions”).
Instead, this Court invalidates “arbitrary” laws without “a fair and substantial
relation to the object of the legislation,” Eisenstadt, 405 U.S. at 447, when the
legislative record reveals a bare desire to harm. Compare United States v. O’Brien,
391 U.S. 367, 383-84 (1968) (declining to search for an “illicit legislative motive”
only after finding the challenged law served a legitimate purpose) with Moreno, 413
- 12 U.S. at 534 (concluding that Congress acted to harm hippies, an unpopular group,
based on one sentence in one Senator’s speech and one sentence in one conference
report). DOMA’s sponsors expressed greater animus towards gay and lesbian
couples with greater clarity than Congress did toward hippies. Representative Bowler
“sponsor[ed DOMA] for a very simple reason” – “homosexuality is immoral [and]
based on perversion [and] lust.” (R.30) Senator Landry echoed that Ames must
maintain a “moral difference” and reject “neutrality between homosexual and
heterosexual relationships.” (R.35) Since DOMA bears no “fair and substantial
relation” to Ames’s asserted interests, Petitioners’ Br. 33-42, this Court should not
speculate beyond those interests. Therefore, a bare desire to harm is all that remains.
III.
AMES’S ASSERTED INTERESTS ARE PRETEXTUAL AND CANNOT
SURVIVE STRICT SCRUTINY OR HEIGHTENED RATIONAL BASIS
REVIEW.
Although Ames wholly relies on rubber-stamp review, Respondent’s Br. 26-
33, DOMA triggers strict scrutiny or heightened rational basis review. DOMA fails
under both standards. See Petitioners Br. 33-42.
A. Morality or Tradition Alone Are Not Legitimate State Interests.
Ames admits that its interest in morality is insufficient, on its own, to satisfy
rational basis review. Respondent’s Br. 36. Tradition similarly depends on another
State interest or redundantly collapses into the interest in morality. This Court has
never held that the State has an interest in preserving “traditional” marriage for its
own sake, but protects marriage because it is valuable for other reasons. See supra at
2-4 (discussing Griswold, Zablocki, and Turner).
- 13 B. It is Arbitrary for Ames to Address Concerns About Potential Custody Disputes
Only by Denying Marriage to Gay And Lesbian Couples.
Ames asserts that the marriage of gay and lesbian couples increases the
likelihood of procreation through surrogacy or sperm donation, which in turn creates
the “potential” for custody disputes. Respondent’s Br. 28-29. Ames nips these
custody disputes in the bud: it intends DOMA to prevent the conception of children
whose biological parents do not live together. Id. Custody disputes, however, bear
no rational relation to gay and lesbian couples who wish to marry. Lesbian couples
can use anonymous sperm donors to avoid postpartum custody disputes altogether,
and only 1% of surrogate mothers, on which some gay couples rely, “have a change
of heart.” Marla Hollandsworth, Gay Men Creating Families Through Surro-Gay
Arrangements, 3 Am. U.J. Gender & L. 183, 186 (1995) (internal quotations omitted).
Furthermore, Ames’s alleged interest is inconsistent with its own family law. In
1993, Ames created second-parent adoption, which allows the non-biological parent
of a child to adopt her and terminate the parental rights of the surrogate mother or
sperm donor. (R.15) Ames could address whatever ambiguities second-parent
adoption did not settle through reasonable regulations of surrogacy and nonanonymous sperm donation. Rather, Ames defends the bitter chill of legislation that
unashamedly targets a minority and prunes children from their families.
Respondent’s Br. 28-29. It is sinister doublespeak for the “beneficiaries” of Ames’s
“procreation” policy to be the children whose non-existence it will guarantee.
Moreover, it is arbitrary to address “potential” custody disputes only by
banning gay and lesbian couples from marriage. Opposite-sex divorce causes the vast
majority of “harrowing,” Respondent’s Br. 29, custody battles. See Advance Report
- 14 of Final Divorce Statistics, 43 Monthly Vital Statistics Report, at 12 tbl. 3 (1995), at
http://www.cdc.gov/nchs/data/mvsr/supp/mv43_09s.pdf (finding 1,075,000 children
of divorce in 1990). Children also face the risk of postpartum custody disputes when:
(1) single women do not live with children’s biological fathers, see Births to
Unmarried Women, America’s Children 2003, at
http://www.childstats.gov/ac2003/indicators.asp?iid=105&id=1&indcode=
(reporting that single women gave birth to 34% of all children in 2000);
(2) women’s health or careers lead them to arrange for surrogate mothers for their
eggs;
(3) one partner is too aged to procreate;
(4) one partner is infertile or sterile, see Fertility at 61 tbl. 51 (reporting that
48.1% of couples with pre-menopausal women cannot procreate); or
(5) the partners do not wish to pass on genetic diseases or conditions.
Ames cannot self-servingly invoke concerns about “potential” custody disputes to
deny marriage to gay or lesbian couples, and simultaneously not discourage the use of
surrogate mothers or sperm donors by all others. This incongruity suggests that
Ames’s alleged interest is pretextual.
CONCLUSION
For the foregoing reasons, the judgment of the court of appeals, upholding
Ames’s DOMA and excluding petitioners from marriage, should be reversed.