STATEMENT OF THE CASE
In 1996, the Ames General Assembly passed the Defense of Marriage Act
(DOMA). (R. 26.) The Act, which limits the institution of civil marriage to opposite-sex
couples, was adopted by the legislature in furtherance of five stated policies:
1) to provide a favorable setting for procreation;
2) to ensure the optimal setting for child rearing – a two-parent family with
one parent of each sex;
3) to defend and nurture the institution of traditional, heterosexual marriage;
4) to preserve scarce State and private financial resources;
5) to defend traditional notions of morality.
(R. 26.) During the legislative debate, DOMA’s sponsor in the House emphasized the
importance of marriage: “Marriage is what binds a husband, wife, and children into a
single unit – a family – which is the cornerstone of our society.” (R. 27.) Similarly,
DOMA’s sponsor in the Senate stressed the need for DOMA to uphold “the basic
building blocks on which our society is founded.” (R. 30.)
Although same-sex couples comprise only 0.66% of Ames households (R. 12.),
they and their supporters managed to pass legislation extending adoption to same-sex
couples and repealing Ames’s sodomy law, three years prior to the passage of DOMA.
(R. 15.) DOMA itself was only one vote short of being defeated in the Senate. (R. 16.)
Public opinion on same-sex marriage in Ames is divided: 32% of citizens believe samesex couples should be allowed to marry, 51% believe they should not, and 17% are
undecided. (R. 16.)
Petitioners are four same-sex couples, each engaged in committed relationships of
mutual protection and support. (Petitioners’ Br. 2-4; R. 8-12.) Petitioners were denied
marriage licenses by their local municipal authorities and brought suit challenging the
1
constitutionality of DOMA under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. (R. 2-3.) The Ames District Court held that DOMA neither
burdens a fundamental right, nor discriminates on the basis of a suspect or semi-suspect
classification. (R. 18, 21.) Finding DOMA to be rationally related to Ames’s interest
concerning procreation, child rearing, and the traditional institution of marriage, the
district court granted Ames’s motion for summary judgment. (R. 19, 22.) The Ames
Circuit Court of Appeals affirmed. (R. 23.)
SUMMARY OF ARGUMENT
DOMA Does Not Burden a Fundamental Right
DOMA does not violate any of petitioners’ rights under the Due Process or Equal
Protection Clause. First, DOMA does not burden the fundamental right to marry because
this right, historically and traditionally situated in the context of procreation and family,
only contemplates unions of opposite-sex couples – the only union naturally capable of
producing offspring without outside assistance.
Second, although petitioners argue this Court’s recent decision in Lawrence v.
Texas compels the government to recognize same-sex marriages, their claim is unavailing
because Lawrence ultimately protected the right of same-sex couples to be free from
governmental intrusion. Consequently, any construction of Lawrence suggesting an
affirmative duty of the state to recognize these relationships undermines the central
motivating theme of that decision.
Finally, petitioners assert a broad autonomy right to choose “intimate selfdefining relationships.” Petitioners, however, improperly derive this putative new
fundamental right; simply put, no such right actually exists. Yet even assuming such a
2
right exists, petitioners’ argument that this broad autonomy right would compel state
recognition through marriage is again flawed; an individual’s right to make free,
autonomous choices in no way translates into a right of state recognition. Because no
alternative constitutional source exists from which to derive a fundamental right to samesex marriage, the proper body to create this right is the legislature, not the judiciary.
DOMA consequently does not burden any of petitioners’ fundamental rights.
DOMA Triggers Only Rational Basis Review
Rational basis review is the proper standard to evaluate the constitutionality of
DOMA. First, as mentioned, DOMA does not burden any fundamental right. Second,
DOMA is a facially neutral statute; it does not classify on the basis of sexual orientation,
and even if it did, homosexuals are not a suspect class. DOMA also does not classify on
the basis of gender because the statute does not single out men or women as a class for
disparate treatment.
Petitioners make no argument that DOMA uses a suspect or semi-suspect
classification. Instead, petitioners argue that this Court should apply so-called
“heightened rational basis review.” Petitioners, however, not only fail to provide any
legal authority for their novel claim, they also fail to define what “heightened rational
basis review” actually entails. This Court should decline petitioners’ invitation to apply
an undefined, amorphous level of scrutiny, and instead analyze DOMA under established
principles of rational basis review.
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DOMA Satisfies Rational Basis Review
Under rational basis review, DOMA passes constitutional muster. First, DOMA
is reasonably related to Ames’s legitimate interests in providing a favorable setting for
procreation. Because homosexual sexual activity cannot physically result in conception,
Ames could rationally conclude that extending same-sex couples the benefits of marriage
will not further Ames’s interest in fostering procreation. Second, DOMA is reasonably
related to Ames’s legitimate interest in ensuring the optimal environment for child
rearing. Given the existence of studies indicating that children of same-sex couples fare
worse on some measures than children of opposite-sex couples, Ames could reasonably
conclude that the optimal environment for child rearing consists of a household with two
opposite-sex parents; Ames could then reasonably choose to promote this optimal
structure by extending the benefits of civil marriage only to opposite-sex couples.
Finally, DOMA directly furthers Ames’s legitimate interests in protecting the institution
of traditional, heterosexual marriage and defending traditional notions of morality. This
panoply of legitimate state interests that are rationally furthered by DOMA confirms that
the statute was not motivated by animus. For these reasons, DOMA is constitutional.
ARGUMENT
I.
DOMA DOES NOT VIOLATE ANY FUNDAMENTAL RIGHT UNDER
THE DUE PROCESS OR EQUAL PROTECTION CLAUSE.
There is no right to same-sex marriage. This Court’s due process jurisprudence
protects private consensual relationships, including gay and lesbian relationships, from
the intrusive apparatus of the state’s criminal laws. Affirmative state recognition of these
4
relationships, however, is a very different matter; it is one that is best resolved through
the political process—not the courts.
Ames’s Defense of Marriage Act (DOMA), as codified at Ames. Gen. L. ch. 14,
§1(a)(iv), does not burden any of petitioners’ fundamental rights under the Due Process
or Equal Protection Clause. U.S. CONST. amend. XIV, § 1. Petitioners, however, present
three arguments why DOMA, which prevents them from marrying a partner of the same
sex, is unconstitutional.
First, petitioners allege that the fundamental right to marry encompasses the right
to marry a partner of the same sex. Yet this right does not include, and has never
included, the right to marry a partner of the same sex. Second, petitioners assert that this
Court’s recent decision in Lawrence v. Texas, 539 U.S. 558 (2003), compels recognition
of same-sex marriage. Petitioners, however, misconstrue Lawrence, which in fact has
little relevance to the public institution of marriage. Finally, petitioners draw upon
language in this Court’s due process jurisprudence to create a right “to choose [an]
intimate self-defining relationship[]” (Petitioners’ Br. 17) and the corollary right to have
this relationship affirmatively recognized by the state. By doing so, however, petitioners
not only erroneously invent a novel due process right, but compound their error by then
asserting that this purported right must lead to the official recognition of their
relationships.
A. Marriage Is, and Has Always Been, an Opposite-Sex Institution.
Marriage—at common law, in state marriage statutes, and as understood in
constitutional jurisprudence—always has referred to the union of one man and one
woman. Black’s Law Dictionary defines marriage as the “legal union of a couple as
5
husband and wife.” BLACK’S LAW DICTIONARY 987 (8th ed. 2004). Moreover, no court
has ever interpreted a marriage statute to include same-sex unions even when the relevant
marriage statute used gender-neutral language and did not specifically prohibit same-sex
marriage. See, e.g., Dean v. District of Columbia, 653 A.2d 307, 315-16 (D.C. 1995)
(collecting cases).
Petitioners assert, however, that “Ames’s ‘traditional,’ but in fact eight-year-old,
definition of marriage … lacks proud historical pedigree.” (Petitioners’ Br. 15.)
Petitioners’ implicit assumption that the definition of marriage included same-sex unions
prior to the passage of DOMA is unfounded for two reasons.
First, petitioners overlook the most obvious reason why Ames’s statute previously
ignored prohibiting same-sex marriages: that marriage simply was assumed to be
between one man and one woman. See Goodridge v. Dep’t. of Pub. Health, 798 N.E.2d
941, 952-53 (Mass. 2003) (considering the same argument and concluding that the
everyday definition of marriage, as well as its common law and statutory definition, has
always meant the “lawful union of a woman and a man”).
Second, petitioners’ argument ignores the gender assumptions implicit in the
consanguinity provision in the Ames marriage statute. See Ames Gen. L. Ch. 14 §
1(a)(ii). That provision, which prohibits marriage “between … a brother and a sister,”
id., would have allowed two brothers to marry under petitioners’ view. This utter
improbability demonstrates that the traditional understanding of marriage did not require
explicit prohibitions on same-sex sibling marriages. See Goodridge, 798 N.E.2d at
6
953 (citing consanguinity prohibition as evidence that marriage exists between only
opposite-sex couples).
B. The Fundamental Right to Marry Does Not Encompass The Right to Have
One’s Same-Sex Union Officially Recognized.
Petitioners argue that there exists a fundamental right to marry under the Due
Process and Equal Protection Clauses of the Fourteenth Amendment. The more pertinent
inquiry, however, is not whether a fundamental right to marry exists, but whether that
long-recognized right includes the right to marry a same-sex partner. The reasoning in
the cases cited by petitioners themselves reveals that the right to marriage has been
premised primarily on the link between procreation and marriage, thereby limiting the
right of marriage to opposite-sex partners.1
In Zablocki v. Redhail, 434 U.S. 374 (1978), this Court recognized the
fundamental right to marry, and located this right within the larger context of other
procreative and familial rights. In discussing the historical lineage of the right to marry,
this Court began by quoting a nineteenth-century case that characterized marriage as “the
foundation of the family and of society, without which there would be neither civilization
nor progress.” Id. at 384 (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)). This
Court reiterated that the right “to marry, establish a home and bring up children” is a
central part of the liberty protected by the Due Process Clause. Zablocki, 434 U.S. at 384
(quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). Even more explicitly, this Court
1
Petitioners contend that gays and lesbians can procreate through assisted reproduction techniques.
(Petitioners’ Br. 35.) While today this practice is more common, it cannot plausibly be argued that those
courts that established the fundamental right to mind had that possibility in mind. See Baker v. Nelson, 191
N.W.2d 185, 186 (Minn. 1971) (“The institution of marriage as a union of man and woman, uniquely
involving the procreation and rearing of children within a family, is as old as the book of Genesis…”).
7
described marriage as “fundamental to the very existence and survival of the race.”
Zablocki, 434 U.S. at 384 (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535, 541 (1942)). This Court also noted “[i]t is not surprising that the decision to marry
has been placed on the same level of importance as decisions relating to procreation,
childbirth, child rearing, and family relationships.” Id. at 386. Accordingly, Zablocki
characterized the fundamental right to marry as intimately linked to the right to procreate
and develop a family.
Later courts have reaffirmed this close association between procreation and
marriage. In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawaii Supreme Court held
that the fundamental right to marry did not encompass the right to marry a same-sex
partner, and that appellants therefore were effectively asking the court to “recognize a
new fundamental right.” Id. at 57 (finding that a denial of same-sex marriage warranted
strict scrutiny only on gender discrimination grounds). Scrutinizing Zablocki’s
antecedents and successor cases, the Hawaii Supreme Court concluded that
Implicit in the Zablocki court’s link between the right to marry, on the one
hand, and the fundamental rights of procreation, childbirth, abortion, and
child rearing, on the other, is the assumption that the one is simply the
logical predicate of the others. The foregoing case law demonstrates that
the federal construct of the fundamental right to marry—subsumed within
the right to privacy implicitly protected by the United States Constitution—
presently contemplates unions between men and women.
Id. at 56. Likewise, in Dean v. District of Columbia, a case concerning the denial of
marriage licenses to same-sex couples, the court examined Zablocki and concluded that
8
the fundamental right to marriage did not encompass same-sex unions. Dean, 653 A.2d
at 332 (discussing Zablocki and concluding, “[a]n historical survey of Supreme Court
cases concerning the fundamental right to marry…demonstrates that the Court has called
this right ‘fundamental’ because of its link to procreation.”).
Petitioners’ reliance on Loving v. Virginia, 388 U.S. 1 (1967), is similarly
misplaced. In that case, the Court focused almost exclusively on the Equal Protection
implications of Virginia’s anti-miscegenation statute.2 Petitioners claim that Loving
extended the right to marry to interracial couples because they could “fully participate in
marriage and therefore the states failed to justify their exclusion.” (Petitioners’ Br. 11.)
The Loving Court, however, engaged in no such analysis; it held that anti-miscegenation
statutes violated the Fourteenth Amendment because they prevented marriages solely on
the basis of race. Loving, 388 U.S. at 11. The Court never discussed whether individuals
in interracial (or intra-racial) relationships “could fully participate in marriage.”
Moreover, although the Loving Court made only passing reference to the fundamental
right to marry, it nonetheless described that right as “fundamental to our very existence
and survival.” Id. at 12 (citing Skinner, 316 U.S. at 541 (1942)). Loving’s brief
reference to the fundamental right to marry, therefore, also links that right to the
procreative function of marriage.
Petitioners next assert that Turner v. Safley, 482 U.S. 78 (1987), provides the
definitive test for determining whether the right to marry should be extended to any
currently excluded group. Citing Turner, petitioners develop a list of criteria that they
assert serves as a checklist for determining whether any given group of people must be
2
For a discussion of the implications of the Equal Protection holding of Loving on same-sex marriage, see
infra note 9.
9
extended the right to marry. See Turner, 482 U.S. at 95-96 (including among the criteria:
whether two individuals can express emotional support, public commitment, religious
faith, and personal dedication to one another, and whether their union can be fully
consummated). Petitioners argue that, because many same-sex couples can satisfy these
criteria, this justifies the extension of marital recognition to all same-sex relationships.
While petitioners doubtlessly are correct that same-sex unions are just as capable of
meeting these criteria as other types of relationships, their use of these attributes of
marriage miscomprehends the judicial exercise involved in Turner. See Petitioners’ Br.
9-10.
Indeed, the Turner Court did not intend to establish any test for whether marriage
should be extended to a currently excluded group of people. Rather, the Turner Court
was focused on whether marriage was “inconsistent with [plaintiff’s] status as a prisoner
or with the legitimate penological objectives of the corrections system.” 482 U.S. at 95.
Quite simply, both the state and the plaintiff-inmates in Turner recognized the existence
of a constitutionally-protected right to marry. The issue in Turner was whether a
prisoner’s status qua prisoner inherently deprived him or her of the right to marry, in
which case denying an inmate the right to marry would present no constitutional
problems. Id. The state argued that prisoners had no right to marry because that right
was inconsistent with their status as prisoners. The Court, however, held that prisoners
could still enjoy numerous attributes of marriage “after taking into account the limitations
imposed by prison life.” Id.
Turner, consequently, does not provide an exhaustive checklist of attributes for
defining marriage, and petitioners misrepresent the context and limited focus of the
10
Turner Court’s inquiry. Indeed, petitioners argue that Turner lists the attributes
“sufficient to form a constitutionally protected marital relationship”; however, what the
Court actually stated in Turner was that these elements are “sufficient to form a
constitutionally protected marital relationship in the prison context.” Id. at 96 (emphasis
added).
Turner’s concern with the unique context of prison life helps explain an otherwise
surprising element of the opinion: Turner makes no effort to reconcile this new expansive
definition of marriage with the various constitutionally permissible prohibitions on the
right to marry. Polygamous or consanguineous relationships may very well meet
Turner’s “attributes of marriage” test, yet the Court made no mention of these other
possible applications. The obvious reason for this omission is that Turner was concerned
with whether marriage was inherently irreconcilable with incarceration, and not with
listing all the necessary and sufficient attributes of a constitutionally protected marriage.
Finally, petitioners fail to account for the Turner Court’s explicit note, id., that it
was not overturning an earlier decision in Butler v. Wilson, 415 U.S. 953 (1974), aff’g
Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973). In Johnson, the District
Court upheld a prohibition on marriage for inmates sentenced to life in prison. The court
observed that “[t]hose aspects of marriage which make it ‘one of the basic civil rights of
man’—cohabitation, sexual intercourse, and the begetting and raising of children—are
unavailable to those in [prisoners’] situation because of the fact of their incarceration.”
Johnson, 365 F. Supp. at 380 (citations omitted). Even though the Turner Court ruled
that inmates generally have the right to marriage, the Court affirmed that in certain cases,
such as life imprisonment in Butler, inmates do not have a right to marry. The Turner
11
Court therefore implicitly relied on the distinction that the inmate in that case would have
the potential, one day, to consummate his marriage and have children. The right to
marriage in Turner, accordingly, was linked to procreation.
This longstanding link between marriage and procreation is at the heart of the
fundamental right to marry. As such, the fundamental right to marry encompasses only
unions between men and women—the only unions naturally capable of producing
children without third-party assistance.
C. Although Petitioners Attempt to Derive a Right to Same-Sex Marriage
from Alternate Sources, No Alternate Due Process Right to Same-Sex
Marriage Exists.
After attempting and failing to locate the right to same-sex marriage in this
Court’s traditional right-to-marry jurisprudence, petitioners appear to identify two
separate sources from which they claim gay couples derive the right to marry. First,
petitioners claim that the right to same-sex marriage flows directly from this Court’s
holding in Lawrence v. Texas, 539 U.S. 558 (2003). Alternatively, they derive the right
to same-sex marriage from a broad, abstract conception of autonomy rooted in language
cited from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
Petitioners’ novel claims are unavailing. Lawrence plainly does not compel the state to
recognize same-sex marriages, for at root, Lawrence was not about governmental
affirmation of homosexual relationships, but rather, about the right to be free from
unwarranted governmental intrusion in the conduct of one’s private consensual
relationships. Similarly, despite general language in Casey about autonomy, that case
failed to announce a generalized fundamental right “to choose intimate self-defining
12
relationships.” (Petitioners’ Br. 17). Accordingly, DOMA does not deprive petitioners
of any due process rights.
1. This Court’s Holding in Lawrence Does Not Require Recognition
of Same-Sex Marriage
Petitioners claim that Lawrence’s holding, which requires gay and lesbian
relations to be treated with dignity and respect, actually demands that such relations be
included in the institution of marriage. (Petitioners’ Br. 13.) Petitioners further claim
that Lawrence stands for the proposition that any attempt by the state to define marriage
violates homosexuals’ right to define their social roles themselves. (Petitioners’ Br. 14.)
However, the passage from Lawrence cited by petitioners to support this conclusion,
when viewed in full, explicitly rejects the interpretation that Lawrence requires state
recognition of homosexual relationships through marriage:
The statutes [criminalizing sodomy] do seek to control a personal
relationship that, whether or not entitled to formal recognition in the law, is
within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a
court, to define the meaning of the relationship or to set its boundaries
absent injury to a person or abuse of an institution the law protects. It
suffices for us to acknowledge that adults may choose to enter upon this
relationship in the confines of their homes and their own private lives and
still retain their dignity as free persons.
Lawrence, 539 U.S. at 567 (2003) (emphasis added). Viewing this quotation in its
entirety reveals that the Court does indeed acknowledge that the state should not define
the boundaries or roles of relationships. However, the Court stops short of requiring the
state to recognize the boundaries or roles individuals set for themselves, particularly if
such recognition would cause harm to “an institution the law protects”—such as
marriage. In its own words, Lawrence is simply about the right of individuals to be “free
13
as adults to engage in the private conduct in the exercise of their liberty under the Due
Process Clause of the Fourteenth Amendment to the Constitution.” Id. at 564.
While Lawrence, on its face, is about protecting private relationships from
unwarranted governmental intrusion, petitioners nonetheless attempt to extract a
requirement of affirmative state action from Lawrence’s holding. Specifically,
petitioners claim that the state must extend formal recognition of gay and lesbian
relationships “beyond private sex within the home” (Petitioners’ Br. 12), based on the
lines in Lawrence’s opening paragraph regarding the “liberty of the person both in its
spatial and more transcendent dimensions.” Id. at 562. However, the remainder of
Lawrence’s opening paragraph clearly suggests the liberty interest is an interest in being
free from “unwarranted government intrusions” both in “dwelling or other private places”
and “other spheres of our lives and existence.” Id. (emphasis added). The liberty interest
cited by petitioners is properly understood as the liberty to act in a realm free from
governmental interference, rather than as a liberty that requires affirmative state
recognition. In fact, Lawrence clearly makes this point itself: “[The present case] does
not involve whether the government must give formal recognition to any relationship that
homosexual persons seek to enter.” Id. at 578. Petitioners therefore misconstrue
Lawrence when they characterize it as requiring state support and recognition of their
personal relationships.
Lawrence does contain language that affirms the equality and dignity of
homosexual persons. See, e.g., id. (“Petitioners are entitled to respect for their private
lives”). The Lawrence Court makes these characterizations, however, in the context of
explaining why criminal sanctions for engaging in homosexual acts are demeaning to the
14
dignity and integrity of gay and lesbian individuals. See, e.g., id. at 574 (discussing the
“stigma” against homosexual persons that would remain were the Texas statute struck
down solely on equal protection grounds); id. at 575 (“The stigma this criminal statute
imposes, moreover, is not trivial.”). These statements reflect the same concern for
dignity present in earlier cases cited in Lawrence that similarly struck down criminal
statutes for intruding into areas protected by the Fourteenth Amendment’s Due Process
Clause. See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262
U.S. 390 (1923); Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405
U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Carey v. Population Servs. Int’l.,
431 U.S. 678 (1977). As such, this conception of dignity is located in a sphere of action
that is constitutionally protected from unwarranted governmental intrusion. Lawrence,
539 U.S. at 578 (“The State cannot demean [homosexuals’] existence or control their
destiny by making their private sexual conduct a crime.”).
However, rather than seeking protection from governmental intrusion as applied
through the criminal laws, petitioners demand affirmative state recognition of their
private relationships. Lawrence extends no further than defining a relationship that the
government has no power to regulate; its language and reasoning are limited to
establishing the inappropriateness of criminalizing such private acts. As such, Lawrence
does not compel the recognition of same-sex marriages.
2. Freedom to choose intimate self-defining relationships is not a
liberty interest protected by the due process clause.
Petitioners also argue that the Constitution protects the individual’s liberty “to
choose intimate self-defining relationships.” (Petitioners’ Br. 17.) The right to same-sex
marriage, they contend, flows naturally from this right. No fundamental right to choose
15
intimate self-defining relationships, however, exists. In attempting to establish the
existence of this right, petitioners misinterpret this Court’s substantive due process
jurisprudence.
Indeed, petitioners claim that the Constitution protects two distinct types of
fundamental rights, each growing out of a distinct, unique source. According to
petitioner, “specific acts” that are “deeply rooted in this Nation’s history and tradition”
are ranked as fundamental rights (Petitioners’ Br. 17); so, too, are “categories of activity”
having to do with “general principles of liberty” that are abstractly defined and
recognized through previous cases. On petitioners’ theory, an example of a protected
“specific act” is the right to travel. “Categories of activity” include “family life, child
rearing, procreation, and sexual intimacy.” (Petitioners’ Br. 17.) To this list, petitioners
urge this Court to add the “liberty to choose intimate self-defining relationships,” within
whose penumbral shadow the right of gays and lesbians to marry supposedly lies.
(Petitioners’ Br. 17.) However, petitioners’ entire discussion of substantive due process
is deeply flawed for several reasons.
First, petitioners provide no broader theory for how courts should evaluate a claim
that asserts the existence of a fundamental right. To determine whether an asserted
“specific act” should be protected as a fundamental right, a court presumably would
apply the substantive due process test announced by this Court in Washington v.
Glucksberg, 521 U.S. 702, 720-721 (1997); see infra Part I.C(3). Petitioners provide no
guidance, however, on how a court should determine whether an asserted “category of
activity” is protected, apart from making clear that the Glucksberg test is not the proper
mode of analysis. Indeed, petitioners leave unanswered both the broader question of
16
what yardstick a court should use to identify protected “categories of activity” and the
narrower question of how, within such a category, particular rights (like the right to
same-sex marriage) should be delineated. The uncertainty and lack of clear directions for
proper adjudication in this area directly conflicts with this Court’s stated “reluctan[ce] to
expand the concept of substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of
Harker Heights, Tex., 503 U.S. 115, 125 (1992).
Second, the distinction that petitioners draw between “specific acts” and
“categories of activity” is unsupported in this Court’s precedents. In fact, the principal
case that petitioners cite for this division recognizes no such cleavage. See Petitioners’
Br. 17 (citing County of Sacramento v. Lewis, 523 U.S. 833, 858 (1998) (Kennedy, J.,
concurring)). While Lewis does state that “objective considerations, including history
and precedent, are the controlling principle” in substantive due process inquiries, it says
nothing about dividing fundamental rights into different categories. See id. Moreover,
Glucksberg—this Court’s most recent and extensive discussion of substantive due
process—provides no mention of an alternate method for deriving substantive due
process rights. To the contrary, Glucksberg declares that there is but one “established
method” of substantive due process analysis—the Glucksberg test itself. See 521 U.S. at
720-721.
Third, the distinction drawn between “specific acts” and “categories of activity” is
wholly arbitrary. It is not at all clear why the right to travel should be classified as a
specific act, while the right to procreate should be classified as a category of activity.
Indeed, petitioners seem confused by their own taxonomy: they recognize the “right to
17
marry” both as a specific act and as a category of activity. (Petitioners’ Br. 17.) The
arbitrariness of the distinction between specific acts and categories of action implicates a
final concern: that the democratic process could be usurped by a judge who, by simply
labeling the asserted right as a category of activity, could evade the exacting Glucksberg
mode of analysis for analyzing specific acts and thus enshrine his personal policy
preferences as a fundamental right.
For the above reasons, petitioners’ argument that a fundamental liberty “to choose
intimate self-defining relationships” exists as a species of a “category of activity,” fails to
persuade.
3. Identification of Substantive Due Process Rights Requires
Application of the Methodology Announced in Glucksberg
To determine whether the fundamental right to choose intimate self-defining
relationships exists, one must apply this Court’s established method of substantive due
process analysis, the two-part Glucksberg test. As the Court describes it:
First, we have regularly observed that the Due Process Clause specially
protects those fundamental rights and liberties which are, objectively,
“deeply rooted in this Nation’s history and tradition,” and “implicit in the
concept of ordered liberty,” such that “neither liberty nor justice would
exist if they were sacrificed.” Second, we have required in substantivedue-process cases a “careful description” of the asserted fundamental
liberty interest.
Glucksberg, 521 U.S. at 720-721 (citations omitted). Applying the Glucksberg test to
petitioners’ asserted right to “choose intimate self-defining relationships,” it becomes
clear that no such interest is recognized as fundamental by our Constitution.
Petitioners’ asserted right is not deeply rooted in this Nation’s history and
tradition. Petitioners concede as much, insofar as they root its recognition “in precedent”
as opposed to “history and tradition.” (Petitioners’ Br. 17.) But even the precedent they
18
cite recognizes no such right. The case upon which petitioners rely most heavily to
establish the asserted right, Casey (see Petitioners’ Br. 19), contains a noteworthy
passage in which the Court observed, “At the heart of liberty is the right to define one’s
own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Casey, 505 U.S. at 851. Petitioners rely on this passage from Casey to establish that their
asserted right has basis in precedent. (Petitioners’ Br. 19.) But Casey did not articulate a
generalized right to choose intimate self-defining relationships. As this Court observed
in Glucksberg, referring specifically to Casey’s “mystery of life” passage:
By choosing this language, the Court’s opinion in Casey described, in a
general way and in light of our prior cases, those personal activities and
decisions that this Court has identified as so deeply rooted in our history
and traditions, or so fundamental to our concept of constitutionally ordered
liberty, that they are protected by the Fourteenth Amendment .… That
many of the rights and liberties protected by the Due Process Clause sound
in personal autonomy does not warrant the sweeping conclusion that any
and all important, intimate, and personal decisions are so protected, and
Casey did not suggest otherwise.
Glucksberg, 521 U.S. at 727-728 (citations omitted). As this excerpt suggests, a
generalized right to choose intimate self-defining relationships is not deeply rooted in our
Nation’s history and tradition. Accordingly, petitioners’ claim that such a right should be
accorded fundamental status through the Due Process Clause should fail, and this Court
should apply rational basis review.
II.
AMES’S DECISION TO EXTEND THE INSTITUTION OF CIVIL
MARRIAGE ONLY TO OPPOSITE-SEX COUPLES IS SUBJECT TO
RATIONAL BASIS REVIEW.
The Ames Circuit Court of Appeals correctly determined that rational basis
review is the proper standard to evaluate the constitutionality of DOMA. Although
petitioners allege that Ames’s decision not to extend civil marriage to same-sex couples
19
burdens their fundamental right to marry, that right does not include, and has never
included, the right to enter into same-sex marriages. Moreover, sexual orientation is
neither a suspect nor semi-suspect classification, and DOMA cannot reasonably be said
to discriminate on the basis of gender.3 Petitioners invite this Court to apply “heightened
rational basis review,” a standard that no majority opinion of this Court has ever
recognized. This Court should reject petitioners’ attempt to invent a new tier of scrutiny
and analyze DOMA under the well-established standard of “minimum ‘rational-basis’
review applicable to general social … legislation.” Bd. of Tr. of Univ. of Ala. v. Garrett,
531 U.S. 356, 357 (2001) (quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
446 (1985)).
A. The Fundamental Right to Marry Under the Equal Protection Clause Does
Not Include the Right to Enter Into Same-Sex Marriages.
The fundamental right to marry exists under both the Equal Protection and Due
Process Clauses. See, e.g., Loving v. Virginia, 388 U.S. 1, 11-12 (1967). The right,
however, does not embrace same-sex marriages because marriage, by definition, exists
only between a man and a woman. See supra Part I.A. As a result, just as DOMA does
not burden petitioners’ fundamental right to marry under the Due Process Clause, it
similarly does not burden that right under the Equal Protection Clause.
B. DOMA is a Facially Neutral Statute, But Even If This Court Believes
DOMA Classifies on the Basis of Sexual Orientation, Sexual Orientation
is Neither a Suspect Nor Semi-Suspect Classification.
Although petitioners’ opening brief does not even argue that DOMA discriminates on the basis of sexual
orientation or gender, petitioners’ original complaint asserts that DOMA deprives them of “equal protection
of the laws based on sexual orientation and gender.” (R.3) Therefore, despite petitioners’ failure to brief
both the suspect class and gender discrimination claims, this brief addresses both issues.
3
20
DOMA is a facially neutral statute that does not discriminate on the basis of
sexual orientation. Even if the statute could be construed to classify on the basis of
sexual orientation, homosexuals are neither a suspect nor semi-suspect class.
Accordingly, neither strict nor intermediate scrutiny is warranted, and this Court should
apply rational basis review.
Facially neutral statutes, even if they impose a disparate impact, are subject only
to rational basis review. See Washington v. Davis, 426 U.S. 229, 246 (1976). Chapter
14, Section 1(a)(iv) of the Ames General Laws, which was added by DOMA in 1996,
prohibits “a marriage between persons of the same sex.” The words “sexual orientation,”
“gays,” or “lesbians” appear nowhere in the statute. Although DOMA indisputably has a
disparate impact on homosexuals, the statute does not facially classify on the basis of
sexual orientation.4 Cf. Geduldig v. Aiello, 417 U.S. 484, 497 n. 20 (1974) (holding that
California disability insurance program exempting pregnancy from coverage did not
classify on the basis of gender). The statute thus triggers only rational basis review.
Yet even if this Court were to find that DOMA classifies on the basis of sexual
orientation, the Court should still apply rational basis review because homosexuals are
neither a suspect nor semi-suspect class. When a statute classifies on the basis of a
suspect classification (such as race), the law is “subjected to strict scrutiny and will be
sustained only if [it is] suitably tailored to serve a compelling state interest.” Cleburne,
473 U.S. at 440. Similarly, when a statute classifies on the basis of a semi-suspect
classification (such as gender or illegitimacy), the law must “serve important
4
Indeed, DOMA neither prohibits a gay man from marrying a woman, nor prohibits a lesbian woman from
marrying a man.
21
governmental objectives and must be substantially related to achievement of those
objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976).
Despite having ample opportunity to consider the issue,5 this Court has never held
that homosexuals are a suspect or semi-suspect class. The vast majority of federal circuit
courts of appeals have rejected the notion that homosexuals constitute a suspect or semisuspect class. See, e.g., Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126 (9th Cir.
1997); Richenberg v. Perry, 97 F.3d 256 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d
915 (4th Cir. 1996); Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994); Town of Ball v.
Rapides Parish Police Jury, 746 F.2d 1049 (5th Cir.1984); Rich v. Sec’y of the Army,
735 F.2d 1220 (10th Cir. 1984). Although some commentators suggest that this Court’s
ruling in Lawrence (overturning Bowers v. Hardwick, 478 U.S. 186 (1986)) may pave the
way for recognition of gays as a suspect class,6 no federal court has chosen to follow this
path.7
Petitioners’ opening brief fails even to mention, let alone argue, that homosexuals
constitute a suspect or semi-suspect class. As a result, even if this Court were to construe
DOMA – a facially neutral statute – as classifying on the basis of sexual orientation –
which it does not – the overwhelming legal authority against recognizing sexual
orientation as a suspect or semi-suspect classification, coupled with the failure of
5
Cases involving equal protection claims by homosexuals include Romer v. Evans, 517 U.S. 620 (1996)
and Lawrence v. Texas, 539 U.S. 558 (2003). Neither of these cases held that homosexuals were a suspect
class.
6
See, e.g., Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the
Aftermath of Lawrence v. Texas, 88 Min. L. Rev. 1184, 1188 n.16 (2004).
7
See, e.g., Lofton v. Sec’y of Dept. of Children & Family Serv., 358 F.3d 804 (11th Cir. 2004) (postLawrence case declining to recognize homosexuals as suspect class).
22
petitioners to present any argument to the contrary, strongly point this Court towards
application of rational basis review.
Because DOMA is facially neutral, no court has recognized sexual orientation as
a suspect or semi-suspect classification, and petitioners fail to present any argument to
the contrary, this Court should apply rational basis review.
C. DOMA Does Not Classify on the Basis of Gender.
DOMA does not classify on the basis of gender because the statute does not single
out men or women as a discrete class for unequal treatment.8 Gender discrimination
occurs when differential treatment disadvantages one sex in relation to the other. See,
e.g., United States v. Virginia, 518 U.S. 515, 555-56 (1996) (striking down Virginia law
precluding women from attending state military institute). When a law classifies by
gender, the statute must “serve important governmental objectives and must be
substantially related to achievement of those objectives.” Boren, 429 U.S. at 197.
In stark contrast to this Court’s gender discrimination cases, DOMA does not create any
distinction between the sexes. DOMA affects men and women in precisely the same
way: both men and women are limited to marrying a person of the opposite sex. Thus, no
disadvantage accrues to either sex because of their gender.9 Most courts that have
considered the claim that a prohibition on same-sex marriage classifies on the basis of
For purposes of this discussion on gender discrimination, this brief uses the terms “sex” and “gender”
interchangeably.
9
Some judges have argued that, just as the statute in Loving v. Virginia, 388 U.S. 1 (1967), prohibited one
person from marrying another person because of his or her race, DOMA prohibits one person from
marrying another person because of his or her sex. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d
941, 971 (Mass. 2003) (Greaney, J., concurring). Although the Loving analogy is attractive at first blush, it
fails to withstand scrutiny. Central to this Court’s holding in Loving was the recognition that the purpose
and effect of the Virginia anti-miscegenation statute was to discriminate against blacks and preserve
“White Supremacy.” Loving, 388 U.S. at 11. DOMA, in contrast, has neither the purpose nor effect of
elevating one gender over the other.
8
23
gender have rejected that claim. See, e.g., Baker v. State, 744 A.2d 864, 880 n. 13 (Vt.
1999) (“[T]he marriage laws . . . do not single out men or women as a class for disparate
treatment, but rather prohibit men and women equally from marrying a person of the
same sex. . . . [E]ach sex is equally prohibited from precisely the same conduct.”)
(emphasis added); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974)
(“There is no . . . sexual classification involved in the instant case because petitioners are
not being denied entry into the marriage relationship because of their sex.”); but see
Baehr v. Lewin, 852 P.2d 44, 64, 67 (Haw. 1993) (plurality opinion holding that samesex marriage prohibition classified on basis of sex).
Because DOMA does not single out men or women as a class for differential
treatment, and therefore does not classify on the basis of gender, no semi-suspect (or
suspect) classification is at issue. Further, petitioners make no mention of gender
discrimination in their opening brief. This Court should therefore apply rational basis
review.
D. “Heightened Rational Basis Review” Does Not Exist.
Petitioners base their entire Equal Protection claim on the following novel
proposition: “When a classification significantly interferes with important personal
interests and relationships, this Court applies a stricter form of rational basis review –
rational basis with ‘bite.’” (Petitioners’ Br. 26.) In support of this claim, however,
petitioners do not cite a single opinion of this Court.10 This failure is unsurprising since
10
Instead, petitioners cite to a law review article by Suzanne B. Goldberg, formerly a staff attorney for
Lambda Legal Defense and Education Fund. See Petitioners’ Br. 26 (citing Suzanne B. Goldberg, Equality
Without Tiers, 77 S. Cal. L. Rev. 481, 513-18 (2004)).
24
no majority opinion of this Court has ever recognized the existence of “rational basis with
‘bite,’” or so-called “heightened rational basis review.” (Petitioners’ Br. 27.)
Petitioners not only lack legal authority for their claim, they never bother to define what
“heightened rational basis review” requires. Petitioners simply state that this Court
should “apply a more searching review” without providing any further guidance to this
Court. (Petitioners’ Br. 32.) Theoretically, this Court could undertake a wide variety of
actions to “apply a more searching review.” For example, the Court could require a
tighter fit between legislative means or ends;11 or require greater justification for
legislative choices;12 or shift the burden to the state to prove the rationality of its laws;13
or examine actual legislative intent (instead of just any conceivable legislative intent).14
No majority opinion of this Court, however, has ever announced any form of “heightened
rational basis review” employing any of these characteristics.
In their attempt to marshal legal authority for this novel standard, petitioners
misread and misinterpret this Court’s precedents. To support their claim that “[f]or the
last thirty years, this Court has consistently used [a] more rigorous form of rational basis
review to invalidate discriminatory laws,” petitioners cite six cases. See Petitioners’ Br.
26. None of these cases, however, establishes the general existence of “heightened
rational basis review.” In four of those cases – Romer, Cleburne, Moreno, and Eisenstadt
Under normal (as opposed to “heightened”) rational basis review, a legislative classification is upheld if
it is “rationally related to a legitimate government interest.” Kimel v. Fla Bd. of Regents, 528 U.S. 62, 83
(2000). This Court has held that state legislation “does not violate the Equal Protection Clause merely
because the classifications [it makes] are imperfect.” Dandridge v. Williams, 397 U.S. 471, 485 (1970).
12
Under rational basis review, “a legislative choice is not subject to courtroom factfinding and may be
based on rational speculation unsupported by evidence or empirical data.” Heller v. Doe, 509 U.S. 312,
336-37 (1993) (citations omitted).
13
Under rational basis review, the burden is upon the challenging party to negative “any reasonably
conceivable state of facts that could provide a rational basis for the classification.” Heller, 509 U.S. at 320.
14
According to this Court’s rational basis jurisprudence, “it is entirely irrelevant for constitutional purposes
whether the conceived reason for the challenged distinction actually motivated the legislature.” FCC v.
Beach Communications, Inc., 508 U.S. 307, 315 (1993).
11
25
– this Court concluded that the asserted state justifications were not rationally related to
the legislative classification. In none of these cases did the Court require a tighter fit
between means and ends, shift the burden of proving rationality, or examine actual
legislative intent – any of which would signal application of a heightened form of rational
basis review.15 Petitioners’ citation to Plyler v. Doe, 457 U.S. 202 (1982) similarly fails
to establish the general existence of heightened rational basis review, for this Court has
narrowly cabined Plyler’s holding to its unique facts.16 Finally, petitioner’s citation to
Justice O’Connor’s concurrence in Lawrence is inapposite as this Court decided
Lawrence on due process, not equal protection grounds.17
With no legal authority and no explanation of what “heightened rational basis
review” actually entails, petitioners nonetheless urge this Court to adopt this amorphous,
untested standard. This Court should reject petitioners’ attempt to invent a new tier of
scrutiny and analyze DOMA under the well-established standard of rational basis review.
III.
DOMA IS RATIONALLY RELATED TO AMES’S LEGITIMATE
INTERESTS IN PROCREATION, CHILD REARING, MORALITY, AND
PROTECTING THE INSTITUTION OF MARRIAGE.
Rational basis review “is a paradigm of judicial restraint,” FCC v. Beach
Communications, Inc., 508 U.S. 307, 313-14 (1993), and “is true to the principle that the
15
Instead, in all of these cases, the Court simply inferred animus from the absence of any legitimate state
interest, and declared that animus was not a legitimate state interest. See, e.g., Romer, 517 U.S. at 632, 635
(finding state constitutional amendment prohibiting governmental action protecting homosexuals from
discrimination to be “inexplicable by anything but animus,” and thus not “directed to any identifiable
legitimate purpose”); see also Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 357 (2001) (describing
the test the Court used in Cleburne as “only the minimum ‘rational-basis’ review applicable to general
social and economic legislation”); Lyng v. United Auto. Workers of America, 485 U.S. 360, 370 n.8 (1988)
(“[In Moreno] we … concluded that ‘a bare congressional desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest.’ This statement is merely an application of the usual
rational-basis test.”) (emphasis added) (citation omitted).
16
See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 459 (1988) (“We have not extended [Plyler’s]
holding beyond the unique circumstances that provoked its unique confluence of theories and rationales.”
(internal quotation marks omitted) (citations omitted)).
17
Lawrence, 539 U.S. at 578-79.
26
Fourteenth Amendment gives the federal courts no power to impose upon the states their
views of what constitutes wise economic or social policy.” Dandridge v. Williams, 397
U.S. 471, 485-86 (1970). As this Court well recognizes, rational basis review does not
authorize “the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of
legislative policy determinations ….” New Orleans v. Dukes, 427 U.S. 297, 303 (1976)
(per curium).
Social legislation, like DOMA, “carries with it a presumption of rationality that
can only be overcome by a clear showing of arbitrariness and irrationality.” Kadrmas v.
Dickinson Public Schools, 487 U.S. 450, 462 (1988). A choice by the legislature “is not
subject to courtroom factfinding and may be based on rational speculation unsupported
by evidence or empirical data.” Heller v. Doe, 509 U.S. 312, 336-37 (1993) (citations
omitted). This Court has recognized that “[e]ven if the classification … is to some
extent both underinclusive and overinclusive … it is nevertheless the rule that …
perfection is by no means required.” Phillips Chem. Co. v. Dumas School Dist., 361 U.S.
376, 385 (1960). The burden is upon the challenging party to negative “any reasonably
conceivable state of facts that could provide a rational basis for the classification.”
Heller, 509 U.S. at 320.
A. DOMA is Rationally Related to Ames’s Legitimate Interests in Providing
a Favorable Setting for Procreation and Ensuring the Optimal
Environment for Child Rearing.
The notion that the state has legitimate interests in fostering procreation and child
rearing is both well-supported in law and uncontested by petitioners. See, e.g., Skinner v.
State of Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“Marriage and
procreation are fundamental to the very existence and survival of the race.”); Adams v.
27
Howerton, 486 F. Supp. 1119, 1124 (C.D. Ca. 1980), aff’d 673 F.2d 1036 (9th Cir. 1982)
(“[T]he state has a compelling interest in encouraging and fostering procreation of the
race and providing status and stability to the environment in which children are raised.”);
Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (“The institution of marriage as a
union of man and woman, uniquely involving the procreation and rearing of children
within a family, is as old as the book of Genesis. . . .”).
1. DOMA is Rationally Related to Ames’s Interest in Providing a
Favorable Setting for Procreation.
Under rational basis review, a classification “must be upheld … if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification.” Heller, 509 U.S. at 320. The link between marriage and procreation rests
on the reasonable assumption that extending the rights and benefits of civil marriage to
heterosexual couples will increase the likelihood that they will have children. Because
homosexual sexual activity cannot result in conception, it is eminently rational for the
state to conclude that extending the benefits of marriage to same-sex couples will not
further Ames’s interest in fostering procreation.18
To the extent that homosexuals procreate through assisted reproduction
(Petitioners’ Br. 35), Ames may reasonably decide it prefers not to encourage that
practice. For the same reasons that opposite-sex couples will be more likely to procreate
if married, it is reasonable to assume that more same-sex couples will engage in assisted
As this Court stated in O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980), “the public interest
in preserving scarce financial and administrative resources is strong.” Id. at 779. Ames may rationally
decide against distributing scarce public resources to certain individuals if doing so does not advance the
state’s interests. See Dandridge, 397 U.S. at 487 (“[T]he Constitution does not empower this Court to
second-guess state officials charged with the difficult responsibility of allocating limited public welfare
funds among the myriad of potential recipients.”). Petitioners’ claim that same-sex marriage will actually
increase the state’s financial resources, Petitioners’ Br. 36, even if accurate, is an argument more
appropriately made to the Ames legislature than to this Court.
18
28
reproduction if given the benefits of marriage. Unlike heterosexual procreation, however,
assisted reproduction necessarily introduces a third party with significant biological ties
to the child into the relationship. Ames might reasonably believe such an intrusion
threatens the stability of the familial structure. Indeed, Ames could reasonably conclude,
as scholars have, that “[l]egalizing same-sex marriage would undoubtedly increase
litigation and conflict over child rearing.” Lynn D. Wardle, Multiply and Replenish:
Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24
Harv. J.L. & Pub. Pol’y 771, 799 (2001). The harrowing facts of the infamous Baby M
case are illustrative. Cf. In re Baby M, 537 A.2d 1227 (N.J. 1988) (“This case affords
some insight into a new reproductive arrangement: the artificial insemination of a
surrogate mother. . . . The unfortunate events that have unfolded illustrate that its
unregulated use can bring suffering to all involved. Potential victims include the
surrogate mother and her family, the natural father and his wife, and most importantly,
the child.”). Although the Baby M case involved an opposite-sex couple seeking a
surrogate mother, it illustrates the potential problems inherent in introducing third parties
into a couple’s reproductive process. Assisted reproduction is the only way same-sex
couples can procreate, thus raising the potential for difficulty in every case of
procreation. Ames could reasonably conclude this does not constitute a favorable setting
for procreation.
Petitioners argue that excluding same-sex couples from marriage is irrational
because “any causal connection between a ban on same-sex marriage and increased
procreation by opposite-sex couples is absurd.” (Petitioners’ Br. 34.) This claim
demonstrates that petitioners underestimate their burden of proof. Ames need not show
29
that denying marriage to homosexuals will increase procreation to satisfy rational basis
review. See Standhardt v. County of Maricopa, 77 P.3d 451, 463 (Ariz. App. 2003) (“We
agree with Petitioners that allowing same-sex couples to marry would not inhibit
opposite-sex couples from procreating. But the reasonableness of the State’s position is
not dependent on the contrary conclusion.”). Rather, petitioners themselves must prove it
is inconceivable that extending the benefits of civil marriage could affect one’s decision
whether or not to have children. See Heller, 509 U.S. at 320-21. (“The burden is on the
one attacking the legislative arrangement to negative every conceivable basis which
might support it, whether or not the basis has a foundation in the record”). Merely
labeling the connection “absurd” fails to meet petitioners’ significant burden.
Finally, petitioners argue that because Ames allows opposite-sex couples who
cannot, or do not intend to, have children to get married, (Petitioners’ Br. 34-35),
restricting marriage to opposite-sex couples is overinclusive and not rationally related to
the state’s interest in promoting a favorable setting for procreation. However, Ames
reasonably draws the line between couples who theoretically can conceive children on
their own and those who cannot. Indeed, the alternative would be to inquire of each
couple applying for a marriage license whether they plan to have children, and condition
the granting of licenses on successful completion of a sterility test. These procedures
would be “difficult, if not impossible” to implement, Standhardt, 77 P.3d at 462, and
would likely infringe upon other fundamental constitutional rights. Moreover, “even if
the classification involved here is to some extent … overinclusive, and hence the line
drawn by [the legislature] imperfect, it is nevertheless the rule that … perfection is by no
means required.” Phillips Chem. Co., 361 U.S. at 385 (1960).
30
2. DOMA is Rationally Related to the State’s Legitimate Interest in
Ensuring the Optimal Setting for Child Rearing.
The connection between marriage and child rearing rests on the empirical fact that
sexual intercourse between heterosexual partners can result in pregnancy and child birth,
whether intended or otherwise. From this premise, it is rational for the state to establish a
mechanism that channels those relations likely to produce offspring into a structure most
likely to be supportive and healthy for children. The question, then, is whether it is
rational for a legislature to believe that traditional, heterosexual marriage provides the
optimal structure. For the following reasons, it is eminently rational.
Social science supports the notion that marriage aids in the creation of healthy and
stable families. Marriage strengthens the commitment between husband and wife during
pregnancy leading to the creation of deeper bonds among father, mother and child. This
foundation in turn builds stronger postnatal relationships. See Wardle, supra, at 793
(“[F]or the sake of the child’s bonds with its parents, procreation is best when it occurs
within . . . marriage.”) (emphasis added).
Ames agrees with petitioners that the scientific evidence is unsettled with respect
to how well children fare in the long-term in same-sex households. (Petitioners’ Br. 4142.) Thus, Ames can reasonably decide not to promote a marital arrangement whose
impact on children is presently too difficult to discern. While petitioners’ optimism in the
face of empirical uncertainty is admirable, it does not invalidate Ames’s understandable
caution. Furthermore, petitioners’ demand that Ames act in the face of this uncertainty is
at odds with this Court’s principles of minimum rationality, in which arguable facts must
be resolved in favor of a statute’s validity against its opponents. See Vance v. Bradley,
440 U.S. 93, 110-12 (1979).
31
As noted earlier, it is rational to assume that granting same-sex couples the
financial and social benefits of marriage will enable and encourage them to bring children
into their households, either through adoption or assisted reproduction. Such an
assumption is particularly reasonable in light of the high costs of assisted reproduction
and same-sex adoption. (R. 9-10.) Given the available data pointing to the negative
effects of same-sex upbringing on children, the legislature could rationally conclude that
allowing gay marriage would “foster the creation of a new class of disadvantaged
children, produced by medically assisted procreative techniques and intended . . . to be
reared without both a mom and dad.” Wardle, supra, at 798.
The adoption laws in Ames do not detract from DOMA’s rational connection to
Ames’s interest in ensuring the optimal setting for child rearing. That Ames allows
same-sex couple adoption does not mean the legislature believes that same-sex
households are the optimal environment to raise children. Rather, the adoption laws
attempt to place children who no longer have the option of being raised by both of their
biological parents in the next best possible environment. DOMA and the adoption laws
thus address child welfare from different perspectives. DOMA shapes child welfare
policy from an ex ante perspective – before children are born – by encouraging child
rearing among only those families capable of providing what the state reasonably
believes to be the optimal setting. Adoption laws address the situation ex post; that is,
they seek to rectify what the legislature could reasonably conclude is an already suboptimal situation. Ames can reasonably conclude that child welfare on the aggregate
level is greater when it refuses to promote same-sex parenting as the most stable and
32
healthy environment, but allows it as an alternative when the optimal outcome is not an
option.19
The fact that certain individual children may not benefit from the marriage laws –
that is, those children who are already being raised in same-sex homes – is insufficient to
defeat rational basis review. Petitioners claim DOMA is irrational because it withholds
“benefits to thousands of children without any corresponding advantage for children
whose parents can marry.” (Petitioners’ Br. 40.) Essentially, petitioners argue the line
drawn by the Ames legislature is imperfect. But as Justice Kennedy wrote in a Ninth
Circuit case pertaining to homosexuals in the military: “Nearly any statute which
classifies people may be irrational as applied in particular cases. Discharge of the …
plaintiffs before us would be rational, under minimal scrutiny, not because their particular
cases present the dangers which justify Navy policy, but instead because the general
policy of discharging all homosexuals is rational.” Beller v. Middendorf, 632 F.2d 788,
808-809, n. 20 (9th Cir. 1980) (citation omitted); see also Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 86 (2000) (“Our Constitution permits States to draw lines … when they
have a rational basis for doing so at a class-based level, even if it ‘is probably not true’
that those reasons are valid in the majority of cases.”). As a result, petitioners’ charge
falls short. Ames is entitled to conclude under rational basis review that, notwithstanding
the unfortunate disadvantages to certain individual children, overall child welfare is
maximized when children are generally raised in a two-parent family with one parent of
each sex.
19
Additionally, a finding that the existence of the adoption laws makes DOMA irrational could have a
chilling effect on progressive social policy. As this Court has noted, “[R]eform may take one step at a
time, addressing itself to the phase of the problem which seems most acute to the legislative mind.”
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955). Ames’s attempt to remedy one
particular social inequity should not bind it to more drastic outcomes it does not support.
33
B. DOMA is Rationally Related to Ames’s Legitimate Interest in Defending
and Nurturing the Institution of Traditional, Heterosexual Marriage.
Ames’s interest in defending and nurturing the institution of traditional marriage
is at least a legitimate state concern. This Court has long noted that preserving and
promoting marriage is a matter in which “the public is deeply interested, for it is the
foundation of family and of society, without which there would be neither civilization nor
progress.” Maynard v. Hill, 125 U.S. 190, 211 (1888); see also Murphy v. Ramsey, 114
U.S. 15, 45 (1885) (“[N]o legislation can be supposed more wholesome and necessary in
the founding of a free, self-governing commonwealth ... than that which seeks to
establish it on the basis of the idea of the family, as consisting in and springing from the
union for life of one man and one woman ... the sure foundation of all that is stable and
noble in our civilization”) (emphasis added).
Marriage serves as the fundamental organizing structure of society. Reynolds v.
United States, 98 U.S. 145, 165 (1878) (“Upon [marriage] society may be said to be built,
and out of its fruits spring social relations and social obligations and duties, with which
government is necessarily required to deal”). Ames’s interest in protecting and nurturing
this central societal institution is thus undoubtedly legitimate.20 DOMA, in turn, directly
furthers and protects the institution of traditional marriage by limiting it to those couples
who have traditionally married – consenting opposite-sex adults. Extending the
institution of marriage to same-sex couples would dramatically undercut Ames’s purpose
in enacting DOMA.
20
See, e.g., Moran v. Moran, 933 P.2d 1207, 1212 (Ariz. App. 1996) (describing marriage as a traditional
relationship in which the State is vitally concerned); Standhardt v. County of Maricopa, 77 P.3d 451 (Ariz.
App. 2003) (recognizing State’s interest in traditional marriage and linking it to procreation).
34
Petitioners’ opening brief fails to mention Ames’s interest in protecting and
promoting the institution of traditional marriage.21 Although dramatic changes in cultural
and social norms have occurred over the years, traditional heterosexual marriage
continues to be the defining feature of American family life – indeed, the vast majority of
children are raised and nurtured in two-parent married households. See R. 12-13
(“According to a June 2003 report of the United States Census Bureau, in 2002, 68% of
children in the United States lived with two married parents, 23% lived with their mother,
5% lived with their father, and 4% lived in households with neither parent present.”).
Given the continuing centrality of traditional, heterosexual marriage to family and
society, and petitioners’ failure to present any argument to the contrary, DOMA clearly
satisfies rational basis review.
C. DOMA is Rationally Related to Ames’s Legitimate Interest in Defending
Traditional Notions of Morality.
Ames’s interest in defending traditional notions of morality is a permissible
exercise of its state police powers, and DOMA directly furthers that interest. In Barnes v.
Glen Theatre, 501 U.S. 560 (1991), this Court recognized that “[t]he traditional police
power of the States is defined as the authority to provide for the public health, safety, and
morals.” Id. at 569. This Court has on many occasions upheld the state’s authority to
promote traditional notions of morality. See, e.g., Paris Adult Theatre I v. Slaton, 413
U.S. 49 (1973) (upholding anti-obscenity statute because it furthered the legitimate State
This interest is not synonymous with what petitioners have construed as Ames’s interest in the definition
of marriage. (See Petitioners’ Br. 37.) First, the so-called definitional interest is simply a definitional
provision for the statute. Moreover, petitioners argue that a state can theoretically define almost any
interest anytime. See id. However, a state cannot create a longstanding, traditional institution at its whim,
and thus petitioners’ definitional analysis is inapposite in analyzing the state’s interest in preserving
traditional marriage.
21
35
interest of “protect[ing] the social interest in order and morality”). Marriage regulations
have also been based on morality. See, e.g., Reynolds, 98 U.S. at 162-66 (upholding
legislature’s power to ban polygamy based on the long history of moral objections to the
practice). Ames’s DOMA statute is thus a familiar exercise of the state’s police power
that this Court has recognized for over a century.
Petitioners imply that Lawrence casts some doubt on the viability of morality as a
legitimate basis upon which to regulate. (Petitioners’ Br. 37-38.) But as petitioners
themselves recognize, the Lawrence Court dealt with a statute justified on morality
grounds alone; the Court went no further than stating morality was not “sufficient” by
itself to satisfy rational basis review. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
Court decisions since Lawrence confirm that morality as a justification for legislation is
alive and well.22
In Lawrence itself, moreover, Justice O’Connor acknowledged: “Unlike the moral
disapproval of same-sex relations – the asserted state interest in this Lawrence – other
reasons exist to promote the institution of marriage beyond mere moral disapproval of an
excluded group.” Id. at 585 (emphasis added). Accordingly, the fact that there is a moral
component to DOMA – in addition to the other interests the statute serves – bolsters the
legitimacy of the statute as a whole.
Many citizens of Ames have profound moral convictions that marriage is a sacred
bond between a man and a woman. These views are wholly distinct from any beliefs
22
See, e.g., Boyd v. County of Henrico, 592 S.E.2d 768, 778 n.12 (Va. Ct. App. 2004) (en banc)
(upholding anti-nudity statute as a proper reflection of “moral disapproval” with “ancient roots”);
Edmondson v. Pierce, 91 P.3d 605, 617 (Okla. 2004) (outlawing bird-fighting as a “reasonable and proper
exercise of the police power by the electorate acting in its legislative capacity to promote public morals.”).
36
regarding the practice of homosexuality and thus constitute permissible moral judgments,
not invidious prejudice. By maintaining the definition of marriage as it has existed
throughout history, Ames defends its constituents’ traditional notions of morality.
D. Ames Enacted DOMA to Further Legitimate State Interests, Thus DOMA
is Not Motivated by Animus.
This Court in Moreno established that “a bare congressional desire to harm a
politically unpopular group cannot constitute a legitimate governmental interest.” United
States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). Legislation premised solely
on animus is thus irrational. Moreno and subsequent cases of this Court make clear,
however, that the existence of independent, legitimate justifications for a law belie the
notion that the statute is born of animus. See id. at 535 (“[A] purpose to discriminate . . .
cannot, in and of itself and without reference to (some independent) considerations in the
public interest, justify [the law].”) (emphasis added); Romer, 517 U.S. at 633 (“By
requiring that the classification bear a rational relationship to an independent and
legitimate legislative end, we ensure that the classifications are not drawn for the purpose
of disadvantaging the group burdened by the law.”).23
As the above analysis demonstrates, DOMA clearly passes constitutional muster
as it is rationally related to numerous legitimate state interests. Nonetheless, petitioners
23
Petitioners fundamentally mischaracterize the function of animus in judicial review of legislation. They
argue that courts are to determine the existence of impermissible legislative discrimination as a threshold
matter in order to determine the level of scrutiny to apply on a case-by-case basis. (Petitioners’ Br. 31-32.)
Petitioners may find illusory support for this method of interpretation in Justice O’Connor’s concurrence in
Lawrence. See Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (“When a law exhibits such a desire
to harm a politically unpopular group, we have applied a more searching form of rational basis review to
strike down such laws under the Equal Protection Clause.”). However, in addition to the obvious infirmity
that no Supreme Court majority has ever so held, Justice O’Connor herself makes emphatically clear this
line of argument provides no support in the case of gay marriage: “Unlike the moral disapproval of samesex relations – the asserted state interest in this case – other reasons exist to promote the institution of
marriage beyond mere moral disapproval of an excluded group.” Id. at 585 (emphasis added).
37
argue that DOMA “exhibits a desire to harm” homosexuals, basing their entire claim on a
single quote plucked from a single speech of a single legislator. (Petitioners’ Br. 32.)
But, neither that particular quote nor the legislative history as a whole reflects judicially
cognizable animus. Furthermore, petitioners’ selective use of legislative history brings
into sharp focus exactly why courts should generally afford legislative history relatively
little – if any – weight in determining a particular law’s purpose.
Representative Bowler’s comments cited by petitioners, (Petitioners’ Br. 32),
denote permissible moral judgment, not impermissible prejudice. As discussed above,
legislating on the basis of morality is still a legitimate exercise of the state’s police
power. See supra Part III.C. Moreover, even if some comments made by DOMA’s
supporters express “negative attitudes” or “fear,” this Court has recognized that the
presence of “such biases … alone does not a constitutional violation make.” Garrett, 531
U.S. at 367. Indeed, Representative Bowler himself emphasize the need for DOMA to
further the state’s interest in protecting marriage and ensuring an optimal environment for
procreation and child rearing: “I simply do not believe that we should in any way dilute
the meaning of this important institution. Marriage is what binds a husband wife, and
children into a single unit – a family – which is the cornerstone of society.” (R. 27.)
In searching for traces of prejudice, the legislative history must be read – if at all
– in light of other laws passed in Ames. In 1993, Ames both extended its adoption laws
to include same-sex couples and repealed the law prohibiting sodomy. Placed in its
proper historical context, it becomes clear that DOMA focuses on protecting the
institution of marriage in its time-honored form, as opposed to targeting certain
individuals who seek to utilize it.
38
Most significantly, petitioners’ method of proving animus demonstrates the
inherent malleability and, hence, unreliability of legislative history. Petitioners seek to
impute an illegitimate subjective motive to a multi-headed decisionmaking body on the
basis of one quote from one speech of one legislator, in the face of contrary statements
that suggest the absence of such illicit prejudice. Courts consistently reject such
attempts. See, e.g., United States v. O’Brien, 391 U.S. 367, 383-384 (1968) (“It is a
familiar principle of constitutional law that this Court will not strike down an otherwise
constitutional statute on the basis of an alleged illicit legislative motive . . . . What
motivates one legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew
guesswork.”). See also Fletcher v. Peck, 10 U.S. 87, 130 (1810); Palmer v. Thompson,
403 U.S. 217 (1971). This Court should continue to disregard such selective evidence of
illicit motivation in favor of the numerous legitimate state interests DOMA rationally
furthers.
The State of Ames strongly believes that same-sex couples have the right to form
intimate relationships, to raise and adopt children, and to share meaningful life
experiences together. None of these rights, however, are implicated in this case. The
critical issue in this case is whether this Court will require Congress and every state
legislature to affirmatively endorse same-sex relationships by fundamentally altering the
institution of civil marriage. Let there be no mistake: petitioners urge this Court to
overturn considered legislative judgment and to stretch beyond recognition the
established right to marry. In fact, they are demanding that this Court create a new
constitutional right—the right to same-sex marriage.
39
As this Court has long recognized, “It is not within our authority to determine
whether [legislative] judgment … is sound or equitable.... The answer to such inquiries
must come from [the legislature], not the courts.” Flemming v. Nestor, 363 U.S. 603,
611 (1960). Judicial restraint not only respects the separation of powers on which our
system of self-government is based, but also recognizes the respective strengths of the
different branches of government. The ability to create any rights not rooted in our
history and tradition, resides properly with the legislature, through the will of the
people—and not with the courts.
CONCLUSION
For the foregoing reasons, we urge this Court to affirm the ruling of the circuit
court below, and uphold the constitutionality of the Ames Defense of Marriage Act.
Respectfully submitted,
Ramzi Ajami
Thomas Lue
Jonathan Benloulou
Sujit Raman
Michael Bloch
Jamie Simpson
40