Peggy A. Tomsic (3879) James E. Magleby (7247) Jennifer Fraser Parrish (11207)

Case 2:13-cv-00217-RJS Document 85 Filed 11/22/13 Page 1 of 97
Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. PLAINTIFFS OPPOSITION TO MOTION OF THE GOVERNOR AND ATTORNEY GENERAL FOR SUMMARY JUDGMENT
Case No. 2:13-cv-00217-RJS Honorable Robert J. Shelby
TABLE OF CONTENTS Page
INTRODUCTION .............................................................................................................ix RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL FACTS .................................................................................................................. x RESPONSE TO THE STATE DEFENDANTS BACKGROUND ....................................xv STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS .............................xv ARGUMENT .................................................................................................................... 1 I. THIS COURT MUST DECIDE WHETHER UTAHS MARRIAGE DISCRIMINATION LAWS VIOLATE THE FOURTEENTH AMENDMENT, AS DOING SO IS REQUIRED BY, COMPORTS WITH, AND DOES NOT DISRUPT, THE FEDERAL BALANCE OF POWERS ........................................... 1 A. B. The Federal Balance Requires That This Court Decide This Case ........... 2 The Regulation of Marriage Is Not Exclusively the Province of the States, as State Laws Are Subject to Constitutional Guarantees, Including Under the Fourteenth Amendment ............................................. 3 The Windsor Decision Is Not Based on Federalism, Nor Does Windsor Mandate This Courts Deference to Utahs Unconstitutional Laws .......................................................................................................... 4 Windsor Requires This Court To Invalidate Utahs Marriage Discrimination Laws ................................................................................... 6
C.
D. II. III.
BAKER v. NELSON IS IRRELEVANT .................................................................. 8 THE FUNDAMENTAL RIGHT TO MARRIAGE PROTECTED BY THE DUE PROCESS CLAUSE ENCOMPASSES THE RIGHT OF PLAINTIFFS TO MARRY THE PERSON OF THEIR CHOICE ................................................ 11 A. B. Plaintiffs Are Not Advocating a New Fundamental Right, But Equal Access to an Already-Existing Fundamental Right ........................ 12 That the Right to Marry Itself Is Deeply Rooted in This Nations History and Tradition Is Sufficient for This Court To Determine That
the Marriage Discrimination Laws Violate Plaintiffs Fundamental Right to Marriage Under the Due Process Clause ................................... 14 C. Civil Marriage Is Not a Static Institution, and the Fundamental Right to Marriage Is Not Per Se Bound to Any Particular Historical or Traditional Form ....................................................................................... 16 This Court Must Invalidate Utahs Marriage Discrimination Laws Under the Due Process Clause of the Fourteenth Amendment ............... 20
D. IV.
POST WINDSOR, UTAHS MARRIAGE DISCRIMINATION LAWS FAIL UNDER THE EQUAL PROTECTION CLAUSE BECAUSE PREJUDICE IS IRRATIONAL, AND UTAHS LAWS ARE BASED ON PREJUDICE .................. 21 A. Under Windsor, the State of Utah Bears the Burden of Showing Its Marriage Discrimination Laws Are Not Based Solely on Prejudice and Cannot Do So ................................................................................... 23
V.
CLASSIFICATIONS BASED ON SEXUAL ORIENTATION REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE ...... 28 A. Faithful Application of the Supreme Courts Binding Precedent Requires Heightened Scrutiny of Classifications Based on Sexual Orientation ............................................................................................... 29 The Relevant Supreme Court Case Law Suggests That Heightened Scrutiny Should Apply to Classifications Based on Sexual Orientation ............................................................................................... 31 The Tenth Circuit's Decision in Price-Cornelison v. Brooks Does Not Prohibit This Court From Finding Sexual Orientation Classifications Are at Least Quasi-Suspect ............................................. 35
B.
C.
VI. VII.
CLASSIFICATIONS BASED ON GENDER ALSO REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE ...... 39 UTAHS MARRIAGE DISCRIMINATION LAWS FAIL EVEN UNDER RATIONAL BASIS REVIEW ............................................................................... 41 A. There Is No Rational Relationship Between Excluding Same-Sex Couples From Marriage and the Promotion of Opposite-Sex Marriage................................................................................................... 43 1. The Relevant Rational Relationship Inquiry Is Not Whether It Is Rational for Utah to Permit Opposite-Sex Marriage, But
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Rather Whether It Is Rational for Utah to Exclude Same-Sex Couples from Civil Marriage to Achieve That Goal........................ 44 2. As a Matter of Law, Any Purported Interest in Encouraging Opposite-Sex Couples to Marry (and Encouraging the Incidents of Such Marriages) Is Not Rationally Related to Utahs Marriage Discrimination Laws ............................................ 46
B.
Utahs Marriage Discrimination Laws Are Not Rationally Related to Any Interest in Bettering the Lives of Utahs Children .............................. 50 1. Utahs Marriage Discrimination Laws Are Not Rationally Related to any Interest in Promoting Responsible Procreation .................................................................................... 53 Utah's Marriage Discrimination Laws Are Not Rationally Related to an Interest in Promoting Optimal Parenting and Childrearing ................................................................................... 60
2.
C.
Preserving Tradition, and Avoiding the Conse uences of Change, Are Not In and of Themselves Legitimate Goals of the State ............ 65 1. 2. Preserving Traditional Marriage, Solely for Traditions Sake, Is Not a Legitimate Goal of the State .................................. 66 Utahs Marriage Discrimination Laws Are Not Rationally Related to the Purported Interest in Proceeding with Caution When Implementing Social Changes ............................................ 68
D. VIII.
Utahs Marriage Discrimination Laws Damage the State and SameSex Couples ............................................................................................ 70
THE STATE OF UTAH MAY NOT CATEGORICALLY DENY RECOGNITION OF SAME-SEX MARRIAGES PERFORMED IN OTHER STATES ............................................................................................................. 72 THE STATE DEFENDANTS DO NOT DENY THAT INJUNCTIVE RELIEF IS AVAILABLE TO PLAINTIFFS UNDER 42 U.S.C. 1983, AND A DETERMINATION AS TO WHETHER PLAINTIFFS WOULD BE ENTITLED TO ANY MONETARY AMOUNT IS PREMATURE .......................... 75
IX.
CONCLUSION .............................................................................................................. 76
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TABLE OF AUTHORITIES Page Cases Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (plurality) ..................................................... 40 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed w/o op., 409 U.S. 810 (1972) .......................................................................................................... 8, 9, 10, 11 Baker v. State, 744 A.2d 864 (Vt. 1999) ........................................................................ 64 Bates v. Dep't of Corr. of Kan., 81 F.3d 1008 (10th Cir. 1996) ...................................... 37 Bo Hae Lee v. Mukasey, 527 F.3d 1103 (10th Cir. 2008) ............................................. 44 Bond v. United States, 131 S. Ct. 2355 (2011) ....................................................... 72, 73 Bowers v. Hardwick, 478 U.S. 186 (1986)................................................................. 3, 32 Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ....................... 75 Carey v. Population Services Int'l, 431 U.S. 678 (1977).................................................. 9 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................ 56, 68 Collins v. Harker Heights, 503 U.S. 115 (1992)............................................................. 12 Craig v. Boren, 429 U.S. 190 (1976) ............................................................................. 40 Eisenstadt v. Baird, 405 U.S. 438 (1972) .................................................................. 9, 56 Ex Parte Young, 209 U.S. 123 (1908) ........................................................................... 75 Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality) ....................................... 40 Garden State Equality v. Dow, No. Civ. A. MER-L-1729-11, 2012 WL 540608 (N.J. Super. Ct. Feb. 21, 2012) ............................................................................................ 9
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Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ............................................................................................................................. 29, 46 Goodridge v. Dept Pub. Health, 79 N.E.2d 941 (Mass. 2003) ................................ 54, 64 Griswold v. Connecticut, 381 U.S. 479 (1965), ................................................. 14, 19, 55 Heller v. Doe, 509 U.S. 312 (1993) .............................................................. xii, 42, 54, 66 Hicks v. Miranda, 422 U.S. 332 (1975)...................................................................... 8, 11 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ............................................................. 69 Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) ......................................... 56 Ill. State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173 (1979) .......................... 11 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ........................................................ 29 In re Kandu, 315 B.R.123 (Bankr. W.D. Wash. 2004) ..................................................... 9 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........................................................... 29 Johnson v. Robinson, 415 U.S. 361 (1974)................................................. 56, 57, 58, 59 Jones v. Bates, 127 F.3d 839 (9th Cir. 1997) ................................................................ 11 Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008)...................... 29 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................... passim Loving v. Virginia, 388 U.S. 1 (1967) ...................................................................... passim Lyng v. Intl Union, 485 U.S. 360 (1988)........................................................................ 41 Mandel v. Bradley, 432 U.S. 173 (1979) ....................................................................... 10 Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) .... 46 McLaughlin v. Florida, 379 U.S. 184 (1964) .................................................................. 10 Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) ........................................ 40
Muller v. Oregon, 208 U.S. 412 (1908).......................................................................... 67 Naim v. Naim, 350 U.S. 985 (1956)............................................................................... 10 Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) ........ 29, 54, 65 Perry v. Brown, 671 F.3d 1052 (2012) .......................................................................... 69 Perry v. Schwarzenegger, 704 F. Supp. 2d 921(N.D. Cal. 2010) ........................... passim Plessy v. Ferguson, 163 U.S. 537 (1896)...................................................................... 67 Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259 (2d Cir. 1967) ........................................................................................................................... 8 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ....................... 35, 36, 37, 38 Roe v. Wade, 410 U.S. 113 (1973) ................................................................................. 9 Romer v. Evans, 517 U.S. 620 (1996).................................................................... passim Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ........................... 9, 11 Soto-Lopez v. N.Y. City Civil Serv. Commn, 755 F.2d 266 (2d Cir. 1985) .................... 11 Tenafly Eruv Assn, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) ................ 11 Turner v. Safley, 482 U.S. 78 (1987) ....................................................... 9, 13, 14, 18, 54 United States Dept of Agric. v. Moreno, 413 U.S. 528 (1973) .......................... 42, 56, 58 United States v. Graham, 87 F. Supp. 237 (D. Mich. 1949) .......................................... 17 United States v. Rickett, No. 11-2165, 2013 U.S. App. LEXIS 18464, at *23-24 (10th Cir. Sept. 5, 2013) ............................................................................................................ 37 United States v. Virginia, 518 U.S. 515 (1996) ........................................................ 39, 40 United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................. passim Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ....................................................... 29, 46
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Walmer v. Department of Defense, 52 F.3d 851 (10th Cir. 1995) ........................... 36, 38 Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................... xii, 14, 15, 16 Williams v. Illinois, 399 U.S. 235 (1970) ........................................................................ 66 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .......................................... passim Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................. 3, 9, 12, 13, 55 Constitutional Provisions U.S. Const., Art. III ...................................................................................................... 2, 6 U.S. Const., Amend. I......................................................................................................ix U.S. Const., Amend. V ........................................................................................... passim U.S. Const., Amend. X ............................................................................................ 1, 2, 5 U.S. Const., Amend. XI ................................................................................................. 75 U.S. Const., Amend. XIV ........................................................................................ passim Utah Const., Art. I, 29 .......................................................................................... passim Statutes 1 U.S.C. 7 (DOMA 3)........................................................................................ passim 28 U.S.C. 1738C (DOMA 2) .................................................................................... 72 42 U.S.C. 1983 ........................................................................................................... 75 42 U.S.C. 1988 ........................................................................................................... 76 Utah Code 30-1-2 ............................................................................................. x, 28, 44 Utah Code 30-1-4 ....................................................................................................... 10 Utah Code 30-1-4.1 .......................................................................................... x, 28, 45
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Rules Local Rule DUCivR 56-1 ...................................................................................... x, xii, xv
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Plaintiffs Derek Kitchen, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge (collectively, Plaintiffs), by and through their counsel of record, Magleby & Greenwood, P.C., respectfully submit this Plaintiffs Opposition to Motion of the Governor and Attorney General for Summary Judgment. INTRODUCTION Defendants Gary R. Herbert and John Swallow (collectively, the State Defendants) incorrectly contend that this case is about who decides, and whether permitting opposite-sex couples to marry is rational. However, contrary to these assertions, the issue for this Court to decide is whether the State of Utahs exclusion of same-sex couples from civil1 marriage, and any equivalent for civil marriage, violates the Fourteenth Amendment of the United States Constitution (the Constitution). Such constitutional questions are expressly relegated to this Court under our federal system of government.
To be clear, this case does not implicate any First Amendment right of individuals or institutions that oppose same-sex marriage on religious or moral grounds. Plaintiffs seek the right to civil marriage sanctioned by the State, not religious marriage. Religious groups can, of course, refuse any couples re uest to be married or otherwise decline to recognize, for religious purposes, a civil marriage permitted by law. Religious organizations opposed to same-sex marriage may and do refuse to recognize such marriages, which are now legal in many states. This is no different than the longstanding refusal of the Roman Catholic Church to recognize second marriages of Catholics who divorce, or refusal of Orthodox Judaism to perform religious marriages between Jews and non-Jews. The marriage equality sought by Plaintiffs will not change the rights of religious individuals or groups. However, [t]o the extent [the State] argue[s] that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying . . . those individuals moral views are an insufficient basis upon which to enact a legislative classification. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1000 (N.D. Cal. 2010).
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For the reasons set forth, infra, and in Plaintiffs Motion for Summary Judgment, Docket No. 32 (Plaintiffs Motion), which is expressly incorporated herein, the State Defendants are not entitled to summary judgment under United States v. Windsor, 133 S. Ct. 2675 (2013), and because the State of Utah has not made a showing that its Marriage Discrimination Laws2 survive heightened scrutiny. Rational basis review is not the applicable standard. Even if it were, the question would not be whether the union of a man and woman in marriage is rationally related to a legitimate state interest, but whether the exclusion of same-sex couples from marriage (or its equivalent) is rationally related to a legitimate state interest. As explained in this opposition, including for the same reasons the Defense of Marriage Act (DOMA) was found unconstitutional by the United States Supreme Court (the Supreme Court) in Windsor, Utahs Marriage Discrimination Laws do not survive even this lowest level of constitutional scrutiny. Accordingly, this Court must deny the State Defendants motion. RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL FACTS Pursuant to Local Rule DUCivR 56-1(c)(2)(A) & (B), Plaintiffs provide a response to each legal element and material fact stated by the State Defendants: 1. The Plaintiffs are same-sex couples, with two of those couples desiring to
marry in this State and with one of those couples having previously married in Iowa and now desiring this State to recognize that foreign marriage. Complaint (Doc. 2) 1-2, 58[.] Marriage Discrimination Laws refers, collectively, to (1) Utah Code 30-1-2; (2) Utah Code 30-1-4.1; and (3) Utah Constitution, Article I, 29 (Amendment 3).
2
RESPONSE: Undisputed. 2. Accordingly, the only issue is whether the Fourteenth Amendments
Equal Protection Clause or its Due Process Clause empowers this Court to change the States definition of marriage from the union of a man and a woman to the union of two persons regardless of gender. RESPONSE: Disputed. In the first instance, Plaintiffs object to the State Defendants continued mischaracterization of marriage between individuals of the same sex as merely a marriage of any two persons. Just as with marriage between people of the opposite sex, gay and lesbian individuals seeking to marry desire to have the State sanction their long-term, loving, and committed relationships with the partner of their choice, and to have the protections, responsibilities, and benefits that flow from marriage. The selection of that partner is not fortuitous or random, but the result of a deeply personal, and constitutionally-protected, choice. Same-sex couples seeking to enter into marriage are not just any two persons, any more than opposite-sex couples seeking to enter marriage are just any two persons, and the Court should reject this language, which belittles and disparages Plaintiffs relationships. Plaintiffs further object to the State Defendants continued mischaracterization of Utahs Marriage Discrimination Laws as simply a definition of marriage [as] the union of a man and a woman. Plaintiffs do not seek to change, impede, or denigrate the union of a man and a woman through marriage. They merely want to be able to marry, too. As such, Plaintiffs do not seek to change that marriage may be the union of a man and
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woman, but to strike down the States mandate that marriage may only be the union of a man and a woman, and that same-sex couples may not even enter into a relationship that is legally equivalent to marriage. Accordingly, the issue in this case is whether the State of Utahs exclusion of same-sex couples from marriage (and any equivalent for marriage) violates the Fourteenth Amendment. 3. To prevail on their due process and e ual protection claims, the Plain tiffs
must prove that the definition of marriage as the union of a man and a woman is irrational; that it does not rationally relate to a legitimate State interest. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997); Heller v. Doe, 509 U.S. 312, 320 (1993) . . . . RESPONSE: Disputed. Under rational basis review, the question is not whether the union between a woman and a man is irrational, as the State Defendants contend, but whether mandating that marriage be only between a woman and a man is rationally related to a legitimate governmental interest. However, as discussed in Plaintiffs Motion, rational basis review is not the applicable standard.3 4
Pursuant to Local Rule DUCivR 56-1(c)(2)(D), If there are additional legal elements not stated by the moving party that the non-moving party contends preclude summary judgment, then the non-moving party is to state each such element along with citation to legal authority that supports the element (without argument). Plaintiffs have already set forth in their pending motion for summary judgment the legal elements and undisputed material facts which entitle them to summary judgment, and which also preclude the Court from granting the State Defendants motion for summary judgment. In lieu of repeating this information in this opposition, Plaintiffs refer the Court to the Statement of Elements and Statement of Undisputed Material Facts in their pending motion for summary judgment. See Plaintiffs Motion at viii-xxxi. In addition, Plaintiffs
(continued...)
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First, under the binding analysis in United States v. Windsor, 133 S. Ct. 2675 (2013), Plaintiffs prevail because Utahs Marriage Discrimination Laws violate the Equal Protection Clause of the Fourteenth Amendment under any standard of review, because the design, purpose, and effect of these laws are to single out same-sex couples to impose a disability on them, and to treat them unequally. See Plaintiffs Motion at 1826. Under the analysis of the Supreme Court in Windsor, such laws are irrational, and no legitimate purpose overcomes their purpose and effect to disparage and injure. See id. Furthermore, the States refusal to recognize same-sex marriages performed in other states is likewise unconstitutional under Windsor. See id. at 37-39. Second, Utahs Marriage Discrimination Laws burden Plaintiffs fundamental right to marry the person of their choice, or to have their out-of-state marriage to the person of their choice recognized by the State. See id. at 1-16. Therefore, under the Due Process Clause of the Fourteenth Amendment, the State must show that its laws are narrowly tailored to meet a compelling governmental interest, or Plaintiffs prevail. See id. As shown in Plaintiffs Motion and this opposition, the State Defendants have not met that burden.
________________________ (...continued)
now provide, infra, additional undisputed material facts to rebut the arguments of the State. For the reasons stated in this section (which are discussed in more detail in this opposition, infra, and in Plaintiffs Motion), Plaintiffs do not agree with the State Defendants that the burden of proof is on Plaintiffs. However, as also discussed in this opposition, even if rational basis were the proper level of scrutiny, Utahs Marriage Discrimination Laws fail even under this analysis.
4
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Third, because Utahs Marriage Discrimination Laws deny Plaintiffs e ual access to a fundamental right, under the Equal Protection Clause of the Fourteenth Amendment, the State must show that its laws are narrowly tailored to meet a compelling governmental interest, or Plaintiffs prevail. See id. at 16-18. Again, the State Defendants have not met their burden, as demonstrated in this opposition and Plaintiffs Motion. Finally, Utahs Marriage Discrimination Laws create classifications based on gender and/or sexual orientation that are subject to heightened scrutiny, requiring that the State at least demonstrate the classifications are substantially related to an important governmental interest, or Plaintiffs prevail. See id. at 26-37. As shown in this opposition and Plaintiffs Motion, the State Defendants have not met their burden. 4. Utah is therefore entitled to summary judgment by showing that the man-
woman definition of marriage is rationally related to a legitimate state interest. RESPONSE: Disputed. See Responses to 2. and 3., supra. The State of Utah is not entitled to summary judgment under Windsor, and because the State of Utah has not made a showing that its Marriage Discrimination Laws survive heightened scrutiny. Again, rational basis review is not the applicable standard. Even if it were, the question would not be whether the union of a man and woman in marriage is rationally related to a legitimate state interest, but whether the exclusion of same-sex couples from marriage (or its equivalent) is rationally related to a
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legitimate state interest. As shown in this opposition, Utahs Marriage Discrimination Laws do not survive even this lowest level of scrutiny. RESPONSE TO THE STATE DEFENDANTS BACKGROUND Pursuant to Local Rule DUCivR 56-1(b), the State Defendants have provided a background section, whether disputed or not, for the limited purpose of providing background and context for the case . . . . Because such facts are not presented for the purposes of supporting judgment as a matter of law, Plaintiffs do not respond to this background, for the sake of brevity, and because no response is required under the local rules of this Court. Accordingly, the lack of a response to these background statements should not be construed or deemed as either agreement or disagreement by Plaintiffs. STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS Pursuant to Local Rule DUCivR 56-1(c)(2)(C) & (D), Plaintiffs provide the following additional undisputed material facts to rebut the arguments of the State Defendants: The State of Utah Has No Interest in Differentiating Between Same-Sex and Opposite-Sex Unions 1. Being gay or lesbian has no inherent association with a persons ability to
lead a happy, healthy, and productive life or to contribute to society. 8/20/12 Decl. of L.A. Peplau, Ph.D., in Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada (Peplau Decl.), 11 & 29-32, attached hereto as Exhibit 5.
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2.
Same-sex couples closely resemble opposite-sex couples, including in the
ability to form loving, long-lasting relationships. Id., 12 & 33-37; 10/12/12 Supp. Decl. of L.A. Peplau, Ph.D., in Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada (Supp. Peplau Decl.), 8-9, attached hereto as Exhibit 6; see also Brief of the American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Psychiatric Association, the American Pyschoanalytic Association, the California Medical Association, the National Association of Social Workers and Its New York City and State Chapters, and the New York State Psychological Association as Amici Curiae on the Merits in Support of Affirmance (APA Brief), empirical data and scientifically vetted publications cited at 11-13 (Mar. 2013) (discussing sexual orientation and relationships), United States v. Windsor, No. 12-307 before the United States Supreme Court, attached hereto as Exhibit 10. 3. Marriage provides a range of social and other benefits and protections to
spouses, which contribute to enhanced psychological well-being, physical health, and longevity among married individuals, which benefits and protections are being denied to gay and lesbian individuals through bans on same-sex marriage. Peplau Decl., 13 & 38-52. 4. There is no scientific or empirical support for the notion that allowing
same-sex couples to marry has harmed, or would harm, opposite-sex marriages. Id., 15 & 56-63; Supp. Peplau Decl., 4-7; see also 10/9/13 Decl. of M.V.L. Badgett, Ph.D. (Badgett Decl.), 69-77 (discussing the empirical data of states and countries
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allowing same-sex marriage), attached hereto as Exhibit 1; Brief of Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington as Amici Curiae in Support of Appellants (15 States Brief), empirical data and scientifically vetted publications cited at 22-31 (Oct. 2013) (concluding that, based on the experience of states allowing same-sex marriage, Speculation About the Erosion of the Institution of Marriage Is Demonstrably False), Docket No. 24 in Sevcik v. Sandoval, Case No. 12-17668 in the United States Court of Appeals for the Ninth Circuit, attached hereto as Exhibit 13. 5. Children and adolescents brought up by same-sex couples are as likely to
be well-adjusted as are children brought up by opposite-sex couples. 11/21/13 Decl. of C.J. Patterson, Ph.D. (Patterson Decl.), 11 & 13-36, attached hereto as Exhibit 4; see also APA Brief, empirical data and scientifically vetted publications cited at 18-26 (There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted); Brief of the Amicus Curiae American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor (ASA Brief), empirical data and scientifically vetted publications cited at 6-14 (Feb. 2013) (Scholarly Consensus Is Clear: Children of Same-Sex Parents Fare Just as Well as Children of Opposite-Sex Parents), United States v.
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Windsor, No. 12-307 before the United States Supreme Court, attached hereto as Exhibit 11.5 6. Parental gender and sexual orientation are not related to the ability to be a
good parent or to the likelihood of healthy development among children and adolescents; further, no empirical evidence support has emerged for the view that the presence of both male and female role models in the home promotes childrens adjustment or well-being. Patterson Decl., 12 & 26-36; see also APA Brief, empirical data and scientifically vetted publications cited at 14-18 (The Factors That Affect the Adjustment of Children Are Not Dependent on Parental Gender of Sexual Orientation). 7. There were 3,861 same-sex couples living together in Utah in 2008,
raising approximately 2,900 children under 18 years of age; these children would benefit if their parents were permitted to marry. Patterson Decl., 40; see also Badgett Decl., 13 (3,909 same-sex couples living together in Utah in 2010). 8. Utahs Marriage Discrimination Laws deprive same-sex couples in Utah,
and their children, of significant economic benefits associated with marriage, and impose substantial economic harm on them. Badgett Decl., 11 & 32-68.
The literature cited by the State Defendants and included in their Appendix does not constitute legislative fact it is not literature that reasonable and informed people consider when addressing such wide-reaching social, political and cultural matters. State Defendants Motion at viii. Reasonable and informed people consider empirical data and scientific consensus, not moral viewpoints based on studies that do not pass scientific muster. See, e.g., Patterson Decl.; see also APA Brief & ASA Brief. There is no genuine dispute on these issues, as the State Defendants contend.
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9.
Utahs Marriage Discrimination Laws also harm the State of Utah
economically, including because, over the next three years, the State of Utah will lose approximately $15.5 million in business revenue and $1 million in tax revenue that would have accrued as a result of weddings by same-sex couples, and the States economy will also suffer as Utah remains a comparatively less attractive location for highly ualified workers and business as a result of Utahs discriminatory laws, among other harms to the State. Id., 15-31 10. Marriage is not a fixed institution, as marriage has changed dramatically
over time in the United States to meet changing social needs. 9/4/12 Decl. of N.F. Cott, Ph.D., in Sevcik v. Sandoval, No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada (Cott Decl.), 9 & 29-72, attached hereto as Exhibit 3.
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ARGUMENT For reasons set forth more fully in Plaintiffs Motion, Plaintiffs are entitled to summary judgment. These reasons also require the Court to deny the State Defendants motion for summary judgment. The State of Utah is not entitled to summary judgment under United States v. Windsor, 133 S. Ct. 2675 (2013), and because the State of Utah has not made a showing that its Marriage Discrimination Laws survive heightened scrutiny. Rational basis review is not the applicable standard. Even if it were, the question would not be whether the union of a man and woman in marriage is rationally related to a legitimate state interest, as the State Defendants contend, but whether the exclusion of same-sex couples from marriage (or its equivalent) is rationally related to a legitimate state interest. As shown in this opposition, Utahs Marriage Discrimination Laws do not survive even this lowest level of scrutiny, and the State Defendants are not entitled to summary judgment. Accordingly, the instant motion must be denied. I. THIS COURT MUST DECIDE WHETHER UTAHS MARRIAGE DISCRIMINATION LAWS VIOLATE THE FOURTEENTH AMENDMENT, AS DOING SO IS REQUIRED BY, COMPORTS WITH, AND DOES NOT DISRUPT, THE FEDERAL BALANCE OF POWERS
This case is not about federalism or the Tenth Amendment. Like United States v. Windsor, 133 S. Ct. 2675 (2013), this case is about equal protection and due process, and whether Utahs Marriage Discrimination Laws run afoul of the guarantees provided to all United States citizens, wherever they reside, under the Fourteenth Amendment to the Constitution. As such, this is a case and controversy that is delegated to, and must
be resolved by, this Court. Moreover, under the binding analysis in Windsor, this Court must deny the State Defendants motion, and decide this case in Plaintiffs favor. A. The Federal Balance Requires That This Court Decide This Case
The State Defendants maintain that this case is about who should decide. In other words, they argue this Court should decline to analyze and decide this case under the Fourteenth Amendment, out of deference to the State of Utah. The State Defendants further claim this Court risks interfering with the States exercise of its constitutionally reserved powers, if it decides this case. However, the Constitution reserves to the federal judiciary the power to interpret the Constitution in cases before it, including under the Fourteenth Amendment. See U.S. Const. Art. III, 2, cl. 1 (The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .). As such, this case is delegated to the federal judiciary and not reserved to the State of Utah under the Tenth Amendment. See U.S. Const. Amend. X (The powers not delegated to the United States by the Constitution, nor prohibit by it to the States, are reserved to the States respectively, or to the people.). Indeed, this Court must decide whether Utahs Marriage Discrimination Laws violate the Fourteenth Amendment. If it does not, that failure would disrupt the federal balance as set forth in the Constitution -- not the other way around. Plaintiffs agree with the State Defendants that our federal system is intended to safeguard the nations citizens from the abuse of power, and part of that system is the power of the Constitution to provide individuals, wherever they reside, equal protection of the law, and protection of their fundamental rights, even where infringement is the
desire of the majority of citizens in a state.6 Utah is no exception, and the majority of this State cannot use their political power to discriminate against a politically unpopular minority that does not share the majoritys religious and/or moral view in terms of the fundamental right, and equal access, to marriage. B. The Regulation of Marriage Is Not Exclusively the Province of the States, as State Laws Are Subject to Constitutional Guarantees, Including Under the Fourteenth Amendment
In arguing that regulation of marriage is the exclusive province of the State, the State Defendants rely on antiquated opinions and case law, and ignore the patent statements in Windsor to the contrary. First, the State Defendants recognition that power over the subject of marriage resided exclusively with the states at the time of the adoption of the Constitution, as also acknowledged in the dicta of Windsor, is a nonstarter. The Fourteenth Amendment at issue in this case did not exist at the time of the adoption of the Constitution, nor did the Supreme Courts body of law interpreting that amendment, including cases relating to marriage, such as Loving v. Virginia, 388 U.S. 1 (1967) and Zablocki v. Redhail, 434 U.S. 374 (1978). Furthermore, most of the cases cited by the State Defendants to
The fact Amendment 3 passed a public vote does not immunize Utahs Marriage Discrimination Laws from constitutional scrutiny. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (Supreme Court invalidated Colorados state constitutional amendment barring laws providing protection to homosexuals, which amendment was adopted by voters in statewide referendum, under the Equal Protection Clause of the Fourteenth Amendment); see also Bowers v. Hardwick, 478 U.S. 186, 210-11 (1986) (Blackmun, J., dissenting) ([N]either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Courts scrutiny.).
support their argument are either from non-binding, dissenting opinions, or decisions that are outdated. No binding, contemporary authority supports the State Defendants position that marriage is exclusively and absolutely delegated to the states, including because this is not the law. Marriage, while primarily the province of the states, is not exclusively so. The State Defendants gloss over the key statements in the Windsor decision that make it clear the states power to regulate marriage is subject to constitutional guarantees (stated twice in the majority opinion) and of course, must respect the constitutional rights of persons. Windsor, 133 S. Ct at 2691-92 (emphasis added). Where a states regulation of marriage does not respect those rights, or infringes upon those guarantees -- such as the case here -- then the states power is limited by the Constitution. This is true regardless of the fact that domestic relations have been largely (but not exclusively) relegated to the states throughout our nations history. C. The Windsor Decision Is Not Based on Federalism, Nor Does Windsor Mandate This Courts Deference to Utahs Unconstitutional Laws
The Windsor decision does not support the position that the State of Utah has an unfettered right to determine all matters involving marriage in Utah, and the State Defendants wholly misinterpret the Supreme Courts decision in their efforts to uphold Utahs unconstitutional laws. DOMA was in fact struck down, not because states have an exclusive and absolute right to regulate marriage, but because DOMA deprived same-sex couples of their constitutional rights under the Fifth Amendment. See Windsor, 133 S. Ct. at 2692-93, 2695 (DOMA result[s] [in] injury and indignity that
is a deprivation of an essential part of the liberty protected by the Fifth Amendment; DOMA violates basic due process and equal protection principles; DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.) (emphasis added). Contrary to the State Defendants arguments, the Windsor decision was not based on federalism or the Tenth Amendment. The majority opinion expressly states this. See id. at 2692 (it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution; [t]he States power in defining the marital relation is of central relevance in this case quite apart from principles of federalism because the States decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import) (emphasis added). Chief Justice Roberts dissent, and his personal gloss on the Windsor decision as being based on federalism, is not binding on this Court. Id. at 2697 (Roberts, C.J., dissenting). This is especially true given that the majority opinion (which is binding on this Court) expressly states that the holding is based on equal protection and due process, and not on federalism. The State Defendants sole reliance on Chief Justice Roberts dissent is just further proof of the fallacy of their position. Not only did the majority reject Chief Justice Roberts position, but so did Justice Scalia, who wrote a separate dissent, recognizing the majority opinion for what it is: a holding that would bind lower courts, such as this Court, if presented a constitutional challenge to state laws banning same-sex marriage, such as in this case. See id.at 2709 (Scalia, J., dissenting) ([T]he view that this Court will take of state prohibition of same-sex
marriage is indicated beyond mistaking in todays opinion. . . . [T]he real rationale of todays opinion . . . is that DOMA is motivated by bare . . . desire to harm couples in same-sex marriages. . . . How easy is it, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.) (italics emphasis in original; bold emphasis added). Finally, Windsor does not stand for the proposition the State Defendants urge, that Utahs laws must be accorded the same respect and deference as the laws allowing same-sex marriage in New York, including because Utahs laws do not respect the fundamental rights and liberties of Utahs gay and lesbian citizens, or provide these citizens equal protection of the law. Utahs Marriage Discrimination Laws offend constitutional guarantees, for reasons set forth in Plaintiffs Motion (and in Windsor), and cannot be condoned, as the State Defendants suggest, simply because the Supreme Court has shown deference to the entirely different marriage laws of another state (that are in fact the opposite of Utahs laws, and do not offend the Fourteenth Amendment). D. Windsor Requires This Court To Invalidate Utahs Marriage Discrimination Laws
A states regulation of marriage is subject to constitutional guarantees. See Windsor, 133 S. Ct at 2692. These very guarantees are at issue in this case. Under the Constitution, this Court is charged with deciding this case. See U.S. Const. Art. III. Moreover, under Windsor, this Court must decide this case in Plaintiffs favor. As demonstrated in Plaintiffs Motion, the analysis and foundation for Windsors holding that DOMA was unconstitutional applies with e ual force to Utahs Marriage
Discrimination Laws. See Plaintiffs Motion at 18-26 (equal protection right of same-sex couples to marry in general) & 37-39 (equal protection right of same-sex couples to have their out-of-state marriage recognized in Utah). Moreover, the majority in Windsor further indicated as much when they stated, [w]hile the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes the Fifth Amendment right all the more specific and all the better understood and p reserved. Windsor, 133 S. Ct at 2695. This language means that the Fourteenth Amendment prohibits the State of Utah from doing the same thing that the federal government did in DOMA. Further, even if the majoritys opinion were not plain enough, Justi ce Scalia -no friend to marriage equality -- also recognized that this was the import of the majority opinion in his dissent. See id. at 2709 (Scalia, J., dissenting) (to reach the same conclusion with regard to state laws denying same-sex couples marital status is inevitable) (emphasis added). Finally, as discussed in Plaintiffs Motion, the Supreme Court in Windsor already analyzed and rejected as irrational all of the very same arguments that the State advances here, in attempting to present a justification for its unconstitutional laws. See id. at 2696 (The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure . . . .); see also Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG Brief) at 28-49 (list of potential state interests rejected by the Supreme Court in Windsor as not sufficient to overcome[] the purpose and effect to disparage and injure
same-sex couples) (Feb. 2013), United States v. Windsor, No. 12-307 before the United States Supreme Court, attached hereto as Exhibit 9. In other words, the State Defendants arguments are not new. They have been presented to the nations highest court in materially analogous circumstances, and rejected as not justifying a violation of the Due Process Clause of the Fifth Amendment. Likewise, these very same rationales by the State of Utah do not overcome the purpose and effect to disparage and injure Utahs gay and lesbian citizens, in violation of the Fourteenth Amendment. II. BAKER V. NELSON IS IRRELEVANT
The State Defendants invoke the Supreme Courts 1972 summary dismissal of Baker v. Nelson for want of a substantial federal question, contending that Baker requires dismissal of Plaintiffs claims. See generally id., 191 N.W.2d 185 (Minn. 1971), appeal dismissed w/o op., 409 U.S. 810 (1972). But the Supreme Court has cautioned that, when doctrinal developments indicate otherwise, the lower federal courts should not adhere to the view that if the Court has branded a uestion as unsubstantial, it remains so. Hicks v. Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth. Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967)). In the forty years after Baker, there have been manifold changes to the Supreme Courts e ual protection jurisprudence. Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir. 2012). As the Second Circuit has explained: When Baker was decided in 1971, intermediate scrutiny was not yet in the Court's vernacular. Classifications based on illegitimacy and sex were not yet deemed quasi-suspect. The Court had not yet ruled that a classification of [homosexuals] undertaken for its own sake actually lacked a rational basis. And, in 1971, the government could lawfully
demean [homosexuals] existence or control their destiny by making their private sexual conduct a crime. Id. at 179 (citation omitted); see also Smelt v. County of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (Doctrinal developments show it is not reasonable to conclude the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as unsubstantial.), vacated on other grounds in Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R.123, 138 (Bankr. W.D. Wash. 2004) (explaining that Baker is not binding precedent because of, among other things, the possible impact of recent Supreme Court decisions, particularly as articulated in Lawrence); Garden State Equality v. Dow, No. Civ. A. MER-L-1729-11, 2012 WL 540608, at *4 (N.J. Super. Ct. Feb. 21, 2012) (The United States Supreme Court has decided several pertinent cases both contemporaneous with Baker and more recently which indicate that the issue of denying same-sex couples access to the institution of marriage would not be considered unsubstantial today.). Baker did not and could not address how any of these doctrinal developments bear on Plaintiffs e ual protection claims. Similarly, Baker could not and did not address how Plaintiffs substantive due process claims should be evaluated in light of the Supreme Courts intervening decisions in Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Carey v. Population Services Int'l, 431 U.S. 678 (1977); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987); and Lawrence v. Texas, 539 U.S. 558 (2003). These doctrinal developments closely resemble those that occurred in the antimiscegenation cases. In 1956, the Supreme Court refused to hear a challenge to 9
Virginias anti-miscegenation statute because the case was devoid of a properly presented federal uestion. Naim v. Naim, 350 U.S. 985 (1956). Eleven years later, the Court struck down the same law in Loving v. Virginia, 388 U.S. 1 (1967). In the intervening years, the Court decided McLaughlin v. Florida, 379 U.S. 184 (1964), holding for the first time that a state could not punish interracial sexual activity more severely than intra-racial sexual activity. Like Romer v. Evans, 517 U.S. 620 (1996); Lawrence; and United States v. Windsor, 33 S. Ct. 2675 (2013), McLaughlin represented a change in doctrine that rendered a summary dismissal from years earlier inapplicable to future cases on the issue. Further, Baker did not address whether a State violates equal protection and due process by categorically excluding legally married same-sex couples from its longstanding practice and law that a marriage valid where celebrated generally will be recognized as valid in Utah. See Utah Code 30-1-4 (2013) (A marriage solemnized in any other country, state, or territory, if valid where solemnized, is valid here . . . .). The Baker decision did not even consider this question, much less resolve it; therefore, Baker cannot be deemed to resolve whether Utah must afford equal recognition to the valid out-of-state marriages of same-sex couples. Mandel v. Bradley, 432 U.S. 173, 176 (1979) (holding that a summary dismissal by the Supreme Court for want of a substantial federal uestion is dispositive only on the precise issues presented and necessarily decided).
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For all these reasons, Baker is irrelevant to Plaintiffs challenge to Utahs Marriage Discrimination Laws.7 III. THE FUNDAMENTAL RIGHT TO MARRIAGE PROTECTED BY THE DUE PROCESS CLAUSE ENCOMPASSES THE RIGHT OF PLAINTIFFS TO MARRY THE PERSON OF THEIR CHOICE
The State Defendants contend there is no fundamental right to same-sex marriage, and therefore Utahs Marriage Discrimination Laws do not violate Due Process. However, the Constitution protects the right to marriage of all citizens, and not just the right to marriage in its traditional or historically accepted forms. The contours of civil marriage have changed throughout the history of our nation. Notwithstanding, the fact that marriage is a fundamental right protected by the Due Process Clause has remain unchanged. Because Utahs laws preclude Plaintiffs access to the fundamenta l
As discussed, supra, Baker has been made irrelevant by subsequent doctrinal developments of the Supreme Court. This is especially true given that Baker is a summary affirmance, and not a published opinion. The Supreme Court has stated that summary affirmances have considerably less precedential value than an opinion on the merits. Ill. State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173, 180-81 (1979). For summary affirmances, a lower court is required to independently examine a uestion in light of subse uent doctrinal developments even when the case has not been explicitly overruled. Hicks, 422 U.S. at 344. In contrast to full opinions of the Supreme Court, the Court also has stated doctrinal developments may show a summary dismissal is no longer binding. Smelt, 374 F. Supp. 2d at 874; see also Tenafly Eruv Assn, Inc. v. Borough of Tenafly, 309 F.3d 144, 173 n.33 (3d Cir. 2002) ([S]ubse uent doctrinal developments remove whatever precedential authority a summary disposition inconsistent with them might have); Jones v. Bates, 127 F.3d 839, 851 n.13 (9th Cir. 1997) ([E]ven if we were to assume that [a summary affirmance] concerned precisely the same issues involved here, extensive intervening doctrinal developments . . . strongly suggest that continued reliance on [the summary affirmance] is unwarranted); see also, e.g., Soto-Lopez v. N.Y. City Civil Serv. Commn, 755 F.2d 266, 273 (2d Cir. 1985) (holding that summary affirmance in 1974 is no longer binding in light of intervening precedent from 1982).
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right of marriage, the State Defendants motion should be denied, and summary judgment entered in favor of Plaintiffs on the grounds that the Marriage Discrimination Laws violate Plaintiffs due process rights guaranteed by the Fourteenth Amendment. A. Plaintiffs Are Not Advocating a New Fundamental Right, But Equal Access to an Already-Existing Fundamental Right
The State Defendants erroneously assert that Plaintiffs seek recognition of a new right, not recognized in the Constitution. See, e.g., State Defendants Answer at 7 (State Defendants deny that same-sex marriage is a constitutionally protected right . . . .), Docket No. 16. However, Plaintiffs do not ask this Court to break new ground, or to expand the concept of substantive due process. Collins v. Harker Heights, 503 U.S. 115, 125 (1992). To characterize plaintiffs objectives as the right to same-sex marriage would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy namely, marriage. Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal. 2010) (emphasis added). Rather, plaintiffs ask [the State of Utah] to recognize their relationships for what they are: marriages. Id. (emphasis added). The careful description of the fundamental right to marriage has already been set forth in the numerous cases of the Supreme Court that are discussed in great detail in Plaintiffs Motion, and expressly includes the right to make choices about marriage, including, foremost, the person that you will marry. See Plaintiffs Motion at 4-13; Zablocki v. Redhail, 434 U.S. 374, 383-385 (1978) ([T]he right to marry is of fundamental importance for all individuals . . . [and] the most important relation in life. . . . Marriage is a coming together for better or for worse, hopefully enduring, and intimate
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to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social project. . . . [I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage. . . . This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.") (quotation and citation omitted; emphasis added). Sexual orientation and gender are irrelevant to the marriage relationship, including because same-sex couples intimate relationships embody the very same attributes of marriage that the Supreme Court has identified as necessary to create a constitutionally protected marital relationship. The Supreme Court in Turner v. Safley struck down a prison regulation denying inmates the right to marry as violating the fundamental right of due process. 482 U.S. 78 (1987). The Court concluded the elements of marriage available to a prisoner are sufficient to form a constitutionally protected marital relationship in the prison context. Id., 482 U.S. at 96. The marriage attributes the unanimous Court in Turner found were sufficient to form a constitutionally protected marital relationship are: First, inmate marriages, like others, are expression of emotional support and public commitment. . . . In addition, many religions recognize marriage as having spiritual significance . . . . Third, most inmates eventually will be released by parole or commutation, and therefore, most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt
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of government benefits . . ., property rights . . ., and other, less tangible benefits . . . . [8] Id. at 95-96. Those same marriage attributes apply to same-sex marriage. Because of the Supreme Courts large body of case law on the right to marry, this Court does not have to come up with its own description of the right to marriage, contrary to the State Defendants assertions. This Court need only declare that all citizens have equal access to the fundamental right of marriage already established by binding, Supreme Court precedent, and that Utahs laws prohibit Plaintiffs access to that fundamental right. B. That the Right to Marry Itself is Deeply Rooted in This Nations History and Tradition Is Sufficient for This Court To Determine That the Marriage Discrimination Laws Violate Plaintiffs Fundamental Right to Marriage under the Due Process Clause
It is sufficient that the right to marry itself is deeply rooted in this Nations history and tradition, Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), for this Court to determine that the right to marry a person of the same gender is protected by the Due Process Clause of the Fourteenth Amendment. That is why the Constitution protects, for example, interracial marriage, see Loving v. Virginia, 388 U.S. 1 (1967), and the right of married couples to use contraceptives, see Griswold v. Connecticut, 3811 U.S. 479 (1965), even though interracial marriages were not traditional or historically accepted at points in our nations past, and the use of contraceptives by married couples would not lead to offspring. This is true whether these liberties were originally intended to be Turner also makes it clear that procreation is not an essential element for a marital relationship to be constitutionally protected.
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recognized as fundamental or even recognized at all. As the majority in Lawrence stated: Had those who drew and ratified the Due Process Clauses of the Fifth or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress . As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (emphasis added). While [i]t seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might [marry], United States v. Windsor, 133 S. Ct. 2675, 2689 (2013), the fact that, traditionally, same-sex marriage was not part of our vocabulary is not determinative. [H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process in uiry. Lawrence, 539 U.S. at 572 (internal quotation and citation omitted). As the Supreme Courts more-recent jurisprudence demonstrates, when the rights of gay and lesbian individuals are at issue, history and tradition do not dictate the outcome under substantive due process analysis. See, e.g., id.; see also, e.g., United States v. Windsor, 133 S. Ct. 2675 (2013). Further, and contrary to the State Defendants mischaracterization, this cas e is not like Glucksberg. The Court in Glucksberg held that assisted suicide was not deeply rooted in the nations history, including because it has been criminalized in Anglo American law for over 700 years. See Glucksberg, 521 U.S. at 710-19. In contrast, marriage has been widely lauded and encouraged throughout history. This case is 15
therefore the opposite of, and distinguishable from, Glucksberg, and the State Defendants manipulation of the language in that case to argue against marriage equality is misleading. C. Civil Marriage Is Not a Static Institution, and the Fundamental Right to Marriage Is Not Per Se Bound to Any Particular Historical or Traditional Form
The State of Utah cannot narrowly define the liberty and privacy rights at issue in this case to exclude gay and lesbian individuals from marriage, based on a claim of protecting a traditional definition of marriage, including because many tenets of traditional marriage have fallen by the wayside, as civil marriage in our country has never been as static as the State Defendants now contend. See Cott Decl., 9 (Marriage is not a fixed institution. In the United States, marriage has changed dramatically over time . . . to meet changing social and ethical needs. . . . Societal change over the centuries has produced new features in marriage that are commonly accepted today although they would have been unthinkable at the founding of the United States. Marriage has been a successful civil institution precisely because it has been flexible, not static.) (emphasis added); see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 940 (Nancy Cott, a historian testified as an expert in the history of marriage in the United States. Cott testified that marriage has always been a secular institution in the United States, that regulation of marriage eased the states burden to govern an amorphous populace and that marriage in the United States has undergone a series of transformations since the country was founded.).
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For example, traditional marriage formerly embodied gender roles through the doctrine of coverture, which was ubiquitous throughout the country. See United States v. Graham, 87 F. Supp. 237, 240 (D. Mich. 1949) ([M]arriage destroyed a womans separate legal identity; her legal existence was merged in that of her husband . . . .). Indeed, unlike bans on interracial marriage, all fifty states adopted the doctrine of coverture. Like bans on same-sex marriage, the doctrine of coverture was thought to be justified by biological differences between males and females. However, this tenet of traditional marriage has perished. See Cott Decl., 35 & 45-46 (Over time our country has moved to gender parity in marriage which would have been unthinkable to most Americans at the founding of the United States. . . . These changes reflect the modern view of marriage as an arrangement between two equal and consenting parties who have freely chosen one another. . . . The gender equality of marriage today would profoundly shock any American from the era of the American Revolution of the Civil War.). As another example, traditional marriage was permanent; i.e., to death do us part. Yet, all states now embrace some form of no-fault divorce, despite the fact that this change was met with much resistance: Divorce grounds initially involved only such breaches of the marriage as adultery, desertion, or conviction of certain crimes. . . . Over time, divorce became more easily obtainable . . . . The expansion of grounds for divorce was hotly debated, and fiercely opposed in some quarters . . . . Major religions opposed divorce entirely, or accepted adultery as the sole justification for divorce. . . . Alarmist critics were sure that liberalized treatment of divorce would undermine the marital compact entirely. . . . [E]xtreme differences among [the states] arose. . . . [Ultimately] no-fault divorce was soon embraced nationally as a means of dealing honestly with marital breakdowns, achieving greater equality between men and 17
women within marriage, and advancing further the notion of consent and choice as to ones spouse. Id., 63, 66-67 & 70. As yet another example, and analogous to the States infringement on Plaintiffs constitutionally-protected choice in this case, in some parts of the country, traditional marriage also prohibited marriages between individuals of different race. However, such anti-miscegenation laws were found to be unconstitutional. See Loving v. Virginia, 388 U.S. 1 (1967); see also Perry, 704 F. Supp. 2d at 992 (When the Supreme Court invalidated race restrictions in Loving, . . . the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.) (internal citation omitted). Finally, while traditional marriage has been historically linked with procreation,9 The ability or willingness of couples to produce progeny has never been required for or necessary to marriage under the law of any American state. For example, no state ever barred women past menopause from marrying or allowed a husband to divorce his wife because she was past childbearing age. Men or women known to be sterile have not been prevented from marrying. Nor could a marriage be annulled for an inability to bear or beget children. . . . In the past, widows and widowers remarried Plaintiffs do not deny that procreation is one reason why people may marry, or contend that individuals should not seek to enter marriage to procreate. However, contrary to the arguments of the State Defendants, procreation is not the only reason why people marry, or the reason why the Supreme Court has recognized marriage as a fundamental right. The Supreme Court has, in fact, upheld the right to marry in cases where there is no ability to procreate. See, e.g., Turner v. Safley, 482 U.S. 78, 95-96 (holding attributes of marriage, after considering prison life limitations, were sufficient to form constitutionally protected marital relationship) . Moreover, not even the State Defendants would contend that (opposite-sex) infertile people, elderly people, or even people capable of procreation but not wanting children, should be denied the right to marry.
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whenever a willing mate could be found; although it was often clear that no children would result, marriage was nonetheless desirable because it produced the division of labor expected to undergird a well-functioning household. In our contemporary post-industrial economy, many divorced or widowed older adults marry when they are past childbearing age, usually for reasons of intimacy and stability. . . . [C]ouples with no interest in or expectation of childbearing marry, and re-marry. Cott Decl., 24-25. Notwithstanding, to protect the procreative tenet of traditional marriage, states attempted to deny married couples access to contraceptives, but the Supreme Court invalidated such laws under the Fourteenth Amendment. See Griswold v. Connecticut, 3811 U.S. 479 (1965). If history has demonstrated anything, it is that marriage is not a static concept, but is fluid to accommodate societies evolving understanding of e uality and privacy. But that does not make it any less fundamental. Recently, the Supreme Court acknowledged the evolving nature of marriage in Windsor, stating that allowing same-sex couples to marry enhance[s] the recognition, dignity, and protection of [that class of persons] in their own community, and that New Yorks authorization of same-sex marriages reflects both the communitys considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of e uality. 133 S. Ct. at 2692-93. The Supreme Court explained that [t]he limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion. Id. at 2689. The Supreme Court emphasized that, while the regulation of domestic relations has long been entrusted to
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the states, [s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons . . . . Id. at 2691 (emphasis added). In sum, the constitutional guarantees of the Fourteenth Amendment require that Utahs Marriage Discrimination Laws be struck down, even if it is difficult for some to accept. Indeed, many features of modern marriage that we take for granted today -such as the ability of both spouses to act as individuals, to marry someone of another race, or to divorce for numerous reasons -- were fiercely resisted as they were coming into being, and were viewed by opponents as threatening to destroy the institution itself. Cott Decl., 33. Notwithstanding, the institution of marriage changed in our country to meet societys changing needs and understanding of e uality and privacy, and continues to flourish today because of that flexibility. D. This Court Must Invalidate Utahs Marriage Discrimination Laws Under the Due Process Clause of the Fourteenth Amendment
The right to marriage is deeply rooted in the jurisprudence of the American courts, and all citizens should be free from having the State appropriate that right, without compelling justification. See Plaintiffs Motion at 1-16. Plaintiffs need not convince this Court that same-sex marriage is a historically accepted tradition in this country, any more than the plaintiffs in Loving had to convince the Supreme Court in 1967 that interracial marriage was a historically accepted tradition in this country, in order for Plaintiffs to exercise the same fundamental choices, liberty, and privacy rights that heterosexual individuals enjoy. Under the Due Process Clause of the Fourteenth Amendment, the fundamental right of all individuals regardless of sexual orientation
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to marry the person of his or her choice is protected from unjustified, governmental intrusion. For these and other reasons explained more fully in Plaintiffs Motion, this Court should deny the instant motion, and find that Utahs Marriage Discrimination Laws violate Due Process. IV. POST WINDSOR, UTAHS MARRIAGE DISCRIMINATION LAWS FAIL UNDER THE EQUAL PROTECTION CLAUSE BECAUSE PREJUDICE IS IRRATIONAL, AND UTAHS LAWS ARE BASED ON PREJUDICE
The State of Utah is discriminating against gay and lesbian individuals based on prejudice, and under United States v. Windsor, 133 S. Ct. 2675 (2013), this discrimination fails under any standard of review, as explained in this opposition and in Plaintiffs Motion. Windsor is the binding precedent applicable to this case, because it is the only opinion of the Supreme Court on the issue of same-sex marriage, and because the Supreme Court in Windsor struck down DOMAs limitation on marriage to a union between a man and a woman as a violation of equal protection implicit in the Due Process Clause of the Fifth Amendment, for reasons that re uire Utahs discriminat ory laws to be struck down as well under the Equal Protection of the Fourteenth Amendment. Id. at 2695-96. In striking down DOMA, the Supreme Court held that DOMA injure[s], stigma[tizes], demean[s], and degrade[s] same -sex couples, treating their relationships as second-class, second-tier, and unworthy of [] recognition. Id. at 2692-94 & 2695-96. In addition, the Supreme Court held that DOMA humiliates tens of thousands of children now being raised by same-sex couples and financial[ly] harm[s] them by denying them federal benefits. Id. at 2694-95. The Supreme Court further emphasized that, by denying recognition to same-sex couples,
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DOMA had a substantial societal impact . . . in the daily lives and customs of people. Id. at 2693. In this case, the State of Utah seeks to uphold a definition of marriage which is even more far-reaching and injurious than the definition of marriage found unconstitutional in DOMA. While the Supreme Court held that denying same-sex couples federal benefits under DOMA was unconstitutional, Utahs laws actually prohibit these couples from marrying in the first instance, or even from forming civil unions or domestic partnerships, having even more of a substantial impact on the daily lives and customs of Utahs citizens. Id. at 2693. As in Windsor, Utahs discrimination against same-sex couples is invalid, for no legitimate purpose overcomes the purpose and effect [of the Marriage Discrimination Laws] to disparage and to injure Utahs same-sex couples. Id. at 2696. Because Utahs Marriage Discrimination Laws treat these couples as less respected than others, they violate the E ual Protection Clause, and must be struck down under the binding precedent of Windsor. Id. In sum, the analysis of this case under Windsor is dispositive, showing that Plaintiffs are entitled to summary judgment on their Equal Protection claim for reasons set forth in more detail in Plaintiffs pending motion for judgment as a matter of law -and irrespective of whether sexual orientation is suspect. See Plaintiffs Motion at 1826. These same reasons demand that the State Defendants motion for summary judgment be denied.
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A.
Under Windsor, the State of Utah Bears the Burden of Showing Its Marriage Discrimination Laws Are Not Based Solely on Prejudice and Cannot Do So
The State Defendants contend they are not required to come forth with any reason for their laws, and this Court is required to accept their so-called legislative facts, which are not supported by admissible evidence, are not presented to this Court in any form permitted under Federal Rule of Civil Procedure 56, and which the State Defendants virtually admit are legitimately contested, by argument of serious strength. State Defendants Motion at 18. Instead, the State Defendants argue they may rely on any conceivable reason for Utahs laws, no matter how speculat[ive], tenuous, illogical, and unscientific. Id. at 19-20. However, as discussed, infra, even rational basis scrutiny is not as deferential as the State Defendants contend. In any case, however, under the binding precedent of Windsor -- which is the only case decided by this nations highest court on the subject of same-sex marriage -- this Court cannot uphold laws that discriminate against same-sex couples by purely deferring to the State. Under the analysis of the Supreme Court in Windsor, this Court must look to the actual purpose, design, and effect of the exclusion of same-sex couples from marriage, and whether Utahs laws are undertaken solely to disadvantage Utahs gay and lesbian citizens, by denying them the same rights, protections, responsibilities, and benefits allowed to their similarly-situated, heterosexual counterparts. In particular, the Supreme Court held in Windsor that the design, purpose, and effect of laws burdening same -sex couples should be considered as the beginning point in deciding whether [they are]
23
valid under the Constitution, and at the very least, E ual Protection mean[s] that a bare . . . desire to harm a politically unpopular group cannot justify disparate treatment of that group. Windsor, 133 S. Ct. at 2689 & 2693 (quotation omitted). The Court further stated that DOMAs avowed purpose and practical effect [was] to impose a disadvantage, a separate status, and so a stigma upon all who [desire to] enter into same-sex marriages . . . . Id. at 2693. The Court expressly rejected Congresss claim that DOMA was justified by the need to defend the institution of traditional heterosexual marriage, to express moral disapproval of homosexuality, and to promote an interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws. Id. After reviewing these purported justifications, and others, the Supreme Court held that DOMA was not justified by any legitimate purpose. Id. at 2696. As such, DOMA raise[d] a most serious uestion under the Constitutions [e ual protection guarantees], as its principal effect [was] to identify a subset of relationships and make them une ual. Id. at 2694. DOMAs principle purpose [was] to impose ine uality, not for other reasons like governmental efficiency. Id. Instead, it [told] those couples, and all the world, that their relationships are unworthy of recognition. Id. The differentiation demean[ed] the couple, whose moral and sexual choices the Constitution protects. Id. (citing Lawrence v. Texas, 539 U.S. 558 (2003)). In sum, DOMA single[d] out a class of persons, and impose[d] a disability on the class. It instruct[ed] all [government] officials, and indeed all persons with whom same -sex couples interact, including their own children, that their [relationship] is less worthy than the [relationships] of others. Id. at 2695-96. Accordingly, the Court found DOMA
24
invalid, for no legitimate purpose [overcame] the purpose and effect to disparage and to injure same-sex couples. Id. at 2696. In this case, this Court can look to the stated reasons for the passage of Amendment 3 to determine the design, purpose, and effect of Utahs Marriage Discrimination Laws. Id. at 2689. These reasons are set forth in the voter information Pamphlet, prepared under the direction of the Lieutenant Governor, which reads: [T]he Amendment prohibits any other domestic union from being given the same or substantially equal legal effect as is given to a marriage between a man and a woman. Presently when a man and a woman marry, they receive certain rights, benefits, and obligations provided in the law. A married man and woman receive those rights, benefits, and obligations automatically, by operation of law and solely by virtue of being married. The Amendment prohibits a domestic union from being given those same or similar rights, benefits, and obligations. The scope of that prohibition may be more precisely defined by Utah courts as they interpret the provision in the context of lawsuits that may arise. Utah Voter Information Pamphlet General Election November 2, 2004 (the Pamphlet) at 35, excerpts attached as Ex. C to Decl. of J.F. Parrish in Support of Plaintiffs Motion for Summary Judgment, Docket No. 32-2. The purpose of Amendment 3, as officially stated, is to create a state-sponsored institution of inequality, and to prohibit gay and lesbian couples from enjoying the same protections and benefits under the law as those automatically given to different-sex couples. Id. The Pamphlet further explains that Amendment 3 was necessary to maintain[] public morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship. Id. The Pamphlet further states that Amendments 3 would ensure the continuation of the ideal relationship where men, women and children thrive best and that is an enduring natural marriage 25
between a man and a woman. Id. Thus, the express and stated purpose of Amendment 3 was to further privately-held moral views that same-sex couples are immoral and inferior to heterosexual couples, by disadvantaging them in comparison to opposite-sex couples in the eyes of the law. That stated purpose and effect of Amendment 3 is prejudice pure and simple, as analyzed and determined in Windsor with regard to the analogous purpose and effect of DOMA. Further, and contrary to the State Defendants characterization, the debates on Amendment 3 in the Utah legislature were not marked by a feeling of toleration and concern for the welfare [of] homosexuals in the state. State Defendants Motion at xiii. Plaintiffs do not view statements like the following, which were made by the legislative sponsor of Amendment 3 when it was introduced in the Utah House of Representatives, as showing tolerance and concern for them, but instead as disparaging, and demonstrating a desire to treat their relationships as second-class, inferior, unworthy, immoral, and unequal: I would submit that there is a tide of events in the affairs of men and that the confusion and anarchy of Massachusetts and San Francisco and elsewhere have reached a boiling point, after similar issues have been simmering for some time. Weve come face to face with what Abraham Lincoln long ago said in his day would continue to be the [eternal] struggle between right and wrong that would go on forever and ever. . . . We should not shy away from the notion that this is, indeed, a moral question. For surely it is and we make no apologies for that. You can be compassionate and empathetic, kind and considerate without lowering standards or transforming fundamental principles upon which our society is based. It was John Adams long ago that said the constitution is only suited and fit for a moral people. It is unfit for any other. . . .
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It was Washington long ago that said it is impossible to govern without the Bible. . . . We measure time forward and backwards from the birth of Jesus Christ. And we look to him. We not only pray each morning, but we look to him for the exemplar that he is. He loved all people. He blessed all people. He showed great compassion and mercy. But he didnt lower his standards while he was doing it. He called people to come up to those standards. . . . Where can you say in the time of your representation that youve had the opportunity to so clearly reaffirm and keep from being just a hollow ceremonial recital as politicians make it so at the conclusion of so many addresses: God bless America. . . . 2/24/04 Tr., 2004 General Legislative Session, Utah House of Representatives, at 2, 4, 6 & 15-16 (Rep. L. Christensen , Sponsor of HJR025) (emphasis added), excerpts attached hereto as Exhibit 14. The States legislators believed that e ual access to marriage would result, in their personal opinions, to a lowering [of] standards. Id. at 4 & 15; see also, e.g., id. at 7 (other representative in support of HJR025: I support the resolution because I will not accept same-sex unions as marriage as sanctified. I will not because thats in my heart. And thats the way I feel. But I tolerate them and respect them deeply, thank you.). There can be no mistake that the only purpose of these laws was and is to exclude from civil marriage, those relationships viewed by the religious majority of the State as second-class, inferior, and immoral, not, as the State Defendants contend, to promote marriage between opposite-sex couples (which, as discussed, infra, has no
27
rational relationship to the laws, in any case).10 11 Accordingly, for the reasons set forth by the Supreme Court in Windsor, this Court is likewise bound to reject the furtherance of privately-held moral views as a basis for disadvantaging Utahs same-sex couples, and must find that the Marriage Discrimination Laws are unconstitutional under the Fourteenth Amendment. V. CLASSIFICATIONS BASED ON SEXUAL ORIENTATION REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE
Under the criteria established by this nations highest court, classifications based on sexual orientation require heightened scrutiny, and there is no binding authority prohibiting this Court from making this finding. Accordingly, and because classifications based on sexual orientation re uire heightened scrutiny, the State Defendants motion must be denied, and Plaintiffs Motion granted. The State has come forth with no
The sponsor of Amendment 3 was specifically asked during the floor debate for the rational basis of the law, and how Amendment 3 would make opposite-sex marriages stronger. The sponsor could not answer either of these questions, responding to the latter by stating, If you believe in radical individualism, you can go off in a private corner and you can answer that question. Id. at 10. The fact Amendment 3 was even presented to the voters in November 2004 -when same-sex marriage was already banned through two Utah statutes, and had been banned since 1977 -- further demonstrates that the purpose of the Amendment was to make a state-sponsored, public statement that the long-term, committed relationships of gay and lesbian couples in the State of Utah were and are inferior to those of oppositesex couples, and should be treated unequal. See Utah Code Ann. 30-1-2 (same-sex exclusion clause effective July 15, 1977); id. at 30-1-4.1 (statutory equivalent of Amendment 3, banning same-sex marriage and any equivalent union, effective March 23, 2004).
11
10
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evidence to support that its Marriage Discrimination Laws are substantially related to any state interest, let alone an important state interest. A. Faithful Application of the Supreme Courts Binding Precedent Requires Heightened Scrutiny of Classifications Based on Sexual Orientation
A number of federal and state courts, the current Department of Justice, learned constitutional scholars, and others have recently pronounced that the only conclusion that results from a faithful application of the Supreme Courts criteria for determining whether a class should receive heightened scrutiny, is that classifications based on sexual orientation are suspect (or at least quasi-suspect). See, e.g., Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 310-33 (D. Conn. 2012); Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 985-90 (N.D. Cal. 2012); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010); Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); In re Marriage Cases, 183 P.3d 384, 441-44 (Cal. 2008); Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008); see also, e.g., Brief of the United States on the Merit Question at 35-36 (The government has not lightly concluded that the Courts decisions dictate that heightened scrutiny applies to classifications based on sexual orientation.) (Feb. 2013) & Brief of Constitutional Law Scholars Bruce Ackerman, et al., as Amici Curiae Addressing the Merits at 33 ([L]aws that classify individuals for disparate treatment on the basis of their sexual orientation trigger heightened scrutiny) (Feb. 2013), United States v. Windsor, No. 12-307 before the United States Supreme Court, attached hereto
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as Exhibits 8 & 12, respectively. Plaintiffs likewise urge this Court to faithfully apply the Supreme Courts binding criteria to reach the same conclusion, for reasons set forth in more detail in Plaintiffs pending motion for summary judgment.12 See Plaintiffs Motion at 26-33. Furthermore, the State Defendants are correct that the Supreme Court in Windsor did not address the status of sexual orientation as a class under equal protection. See generally United States v. Windsor, 133 S. Ct. 2675 (2013). Instead, the Supreme Court issued a ruling that the type of discrimination embodied in DOMA, which is the same type of discrimination embodied in Utahs Marriage Discrimination Laws, does not withstand scrutiny under due process and equal protection, irrespective of the standard of review. See Plaintiffs Motion at 18-26. In so holding, this Court should note that the Supreme Court expressly acknowledged -- and then let stand -- the Second Circuits holding that heightened scrutiny applies to classifications based on sexual orientation. See Windsor, 133 S. Ct. at 2684 ([T]he Court of Appeals for the Second Circuit affirmed the District Courts judgment. It applied heightened scrutiny to classifications based on sexual orientation, as both the Department and Windsor had urged.); see also Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) (classifications based on sexual orientation are subject to heightened scrutiny as quasisuspect). While Plaintiffs urge this Court to find that classifications based on sexual orientation are at least quasi-suspect, this Court need not even reach this issue under Windsor to enter judgment in Plaintiffs favor, as discussed in the preceding section and in Plaintiffs Motion. See Plaintiffs Motion at 18-26.
12
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B.
The Relevant Supreme Court Case Law Suggests That Heightened Scrutiny Should Apply to Classifications Based on Sexual Orientation
While the Supreme Court has never expressly stated -- one way or the other -whether classifications based on sexual orientation are suspect or quasi-suspect, the analysis in the relevant cases suggest that the Court would so hold if squarely presented the issue, or that the Supreme Court may have in fact already spoke to this issue in Windsor. At the very least, these cases do not prevent this Court from making such a finding. First, as discussed in the preceding section and in Plaintiffs Motion, classifications based on sexual orientation meet the criteria established in the Supreme Courts cases for heightened scrutiny. See Plaintiffs Motion at 26-33. Second, the 1996 case of Romer v. Evans supports, or at least does not prevent, this Court from finding that classifications based on sexual orientation are at least quasisuspect. In Romer, the Supreme Court invalidated a Colorado law repealing existing (and prohibiting future) legal protections for gay and lesbian individuals, by finding that the law failed even rational basis review. 517 U.S. 620, 632 (1996) (Amendment 2 fails, indeed defies, even [the] conventional inquiry. . . . [I]t lacks a rational relationship to legitimate state interests.). Accordingly, the Supreme Court in Romer did not reach the issue of whether classifications based on sexual orientation are suspect or quasisuspect, including because there was no need in the case to decide whether heightened scrutiny applied.
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Notably, the Romer opinion acknowledged sexual orientation as a trait and not just a means of categorizing a group associated with particular behavior or sexual conduct, thereby signaling an important departure from the Supreme Courts previous decision in Bowers v. Hardwick, 478 U.S. 186 (1986). See, e.g., Romer, 517 U.S. at 633 (the amendment identifies persons by a single trait and then denies them protection across the board). Further, Romer, for the first time, suggested that more than mere deference to the State was required when evaluating the rights of gay and lesbian individuals. See id. at 633 (discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [constitution]) (internal uotation and citation omitted; emphasis added). As this Court is aware, Romer signaled what was yet to come, as this very language was repeated by the Supreme Court 17 years later in support of its decision in Windsor. See Windsor, 133 S. Ct. at 2692 (laws burdening gay and lesbian individuals, as cases of unusual character, would be subject to a form of heightened scrutiny, and reviewing DOMA under such a standard). Third, the 2003 case of Lawrence v. Texas likewise supports, or at least does not prevent, this Court from finding that classifications based on sexual orientation are at least quasi-suspect. In Lawrence, the Supreme Court invalidated Texass criminal ban on sodomy by finding that the law violated the Due Process Clause of the Fourteenth Amendment. 539 U.S. 558, 578 (2003). Again, the Supreme Court did not evaluate the law under an equal protection analysis, nor reach the issue of the appropriate level of scrutiny for classifications based on sexual orientation, because it did not need to reach
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this issue to hold the Texas law unconstitutional. Notwithstanding, the majority opinion is a helpful context for this case. While the Supreme Court in Lawrence declined to base its holding on the Equal Protection Clause, ruling instead on the basis of substantive due process, the Supreme Court expressly stated that such an argument was tenable. Id. at 574. The Supreme Court then went on to explain how its Due Process holding would advance the Equal Protection argument, in any case: Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. Id. at 575 (emphasis added). Fourth and finally, the 2013 case of United States v. Windsor likewise supports, or at least does not prevent, this Court from finding that classifications based on sexual orientation are at least quasi-suspect. In Windsor, the Supreme Court invalidated DOMA based on a violation of the Due Process Clause of the Fifth Amendment. 133 S. Ct. 2675, 2695 (2013) (holding that [t]he liberty protected by the Fifth Amendments Due Process Clause contains within it the prohibition against denying to any person the e ual protection of the laws, and that DOMA was a deprivation of such liberty.) Again, the Supreme Court did not discuss whether classifications based on sexual orientation are suspect or quasi-suspect, because it did not need to resolve that issue to resolve the case. However, as discussed in the preceding section, the Supreme Court expressly acknowledged -- and let stand -- the Second Circuits holding that classifications based on sexual orientation are suspect. Further, the Supreme Court
33
indicated that laws that deliberately target politically unpopular groups, as cases of unusual character, would be subject to a closer examination of the laws purpose and effects, and did in fact review DOMA under such standard. Id. at 2692 (quoting Romer, 517 U.S. at 623). The Supreme Court in Windsor concluded that DOMA was not sufficiently connected to a legitimate governmental purpose because its interference with the equal dignity of same-sex marriages . . . was more than an incidental effect of the federal statute. It was its essence. Id. The Court held that DOMA is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. Id. at 2696. In other words, the Supreme Court did not merely defer to Congress, but looked to the purpose of the legislation, and whether the classification was in fact drawn to disadvantage gay and lesbian individuals. As such, the Windsor decision, particularly given the Supreme Courts well-established mandated criteria for heightened scrutiny, as well as the background of Romer and Lawrence, strongly suggests that classifications that impose broad and undifferentiated burdens upon politically unpopular groups are subject to more than mere deference to a States potential rationale, and that the State bears the burden of showing that the law is not purely to disadvantage an identifiable group, even where the law may also (conceivably and incidentally) serve some other governmental interest. In sum, Windsor, at a minimum, supports that the Courts review now includes a close examination of a laws purpose and effects when a law targets a politically
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unpopular minority group. See United States v. Windsor, 133 S. Ct. 2675, 2692-93 (2013). Utahs Marriage Discrimination Laws, like DOMA, are also invalid because no legitimate purpose overcomes the purpose and effect to disparage same -sex couples in Utah. Id. at 2696. Likewise, [the] essence of Utahs laws is the interference with the equal dignity of same-sex marriages. Id. at 2693. The plain language and history of these laws demonstrate they are motivated by animus, as discussed, supra, and in Plaintiffs Motion, and that the classification of persons [is] undertaken for its own sake, something the E ual Protection Clause does not permit. Romer v. Evans, 517 U.S. 620, 635 (1996). In conclusion, the Supreme Court has never foreclosed a finding of suspect or quasi-suspect classification with respect to sexual orientation, and the cases in fact support such a conclusion. Further, as discussed in the next section, the law of the Tenth Circuit likewise does not foreclose such a finding by this Court. C. The Tenth Circuit's Decision in Price-Cornelison v. Brooks Does Not Prohibit This Court From Finding Sexual Orientation Classifications Are at Least Quasi-Suspect
Despite the Supreme Court precedent already discussed, which compels a finding by this Court that the Marriage Discrimination Laws should be reviewed under heightened scrutiny, the State Defendants argue that, under the Tenth Circuits decision in Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir.2008), this Court is bound to find this case must be reviewed under rational basis scrutiny. However, this argument fails. Price-Cornelison involved the claim of disparate treatment by a local law official in enforcing a protective order of a lesbian victim of domestic violence. See id. at 1110
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n.4 (Price-Cornelison specifically allege[d] discrimination against lesbian victims of domestic violence rather than discrimination against lesbians generally. . . . [as the] evidence[]indicat[ed] that [police] actions favored [Price-Cornelisons cohabitating partner], who is herself a lesbian.). Moreover, while [i]n the district court, P riceCornelison also alleged lesbians comprise a suspect class, warranting strict scrutiny[,] Price-Cornelison [did] not reassert that claim [] on appeal. Id. at 1113 n.9. Accordingly, whether sexual orientation in general constituted a suspect class was not an issue on appeal in Price-Cornelison. Id. Moreover, while the Tenth Circuit noted that, [i]n any event, this court . . . has previously rejected the notion that homosexuality is a suspect classification, id., the only support cited for that proposition was the then 13-year-old (now 18-year-old), pre-Lawrence, case of Walmer v. Department of Defense, 52 F.3d 851, 854 (10th Cir. 1995). Id. Ultimately, the court held that Price-Cornelison had sufficiently established that her constitutional rights to e ual protection were violated, because the Court [could not] discern on this record, a rational reason to provide less protection to lesbian victims of domestic violence than to heterosexual domestic violence victims. Id. at 1114. The Price-Cornelison case does not dictate the level of scrutiny to be applied in this case for several reasons. First, as expressly stated in the Tenth Circuits decision, whether classifications based on sexual orientation in general were and are suspect was not an issue raised on appeal. Id. at 1113 n.9. Accordingly, the courts discussion of its previous holdings in a footnote was merely dicta, and not binding on this Court in this case in determining whether sexual orientation is a suspect or quasi-suspect class
36
for purposes of determining the level of scrutiny. See Bates v. Dep't of Corr. of Kan., 81 F.3d 1008, 1011 (10th Cir. 1996) ([A] panel of this Court is bound by a holding of a prior panel of this Court but is not bound by a prior panel's dicta."); see also United States v. Rickett, No. 11-2165, 2013 U.S. App. LEXIS 18464, at *23-24 (10th Cir. Sept. 5, 2013) (quoting Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005) ("A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.")). Further, the Tenth Circuit in Price-Cornelison, like the Supreme Court in Romer v. Evans, did not reach the issue of whether classifications based on sexual orientation are suspect, because the court found that the discrimination at issue did not even survive rational basis review. Compare Price-Cornelison, 524 F.3d at 1114 (police had no rational reason for discriminating against Price-Cornelison) with Romer, 517 U.S. 620, 632 (1996) (Colorado law did not even survive rational basis review). As such, there was no need for the Price-Cornelison court to reach this issue in order to resolve Price-Cornelisons claim, further supporting that any discussion of sexual orientation as a class was non-binding dicta. Finally, and most importantly, to the extent the Tenth Circuits discussion of its past holding is more than mere dicta, it should be rejected because the only Tenth Circuit case the Price-Cornelison court cites is a case decided in 1995 8 years before Lawrence v. Texas, 539 U.S. 558 (2003). See Price-Cornelison, 524 F.3d at 1113 n.9
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(citing Walmer, 52 F.3d at 854). In Walmer, the Tenth Circuit affirmed the denial of a preliminary injunction in favor of a lesbian major in the Army, who sought to prevent the Army from discharging her for engaging in sexual conduct with another woman, including because the movant would not likely prevail on the merits of her Equal Protection claim. 52 F.3d at 852-54. In wake of the Supreme Courts decision in Lawrence, Walmer can no longer be considered good law for any proposition related to discrimination against gay and lesbian individuals. Accordingly, any reliance on Walmer in Price-Cornelison would not have binding effect on this Court, thereby also calling into serious question any binding effect of Price-Cornelisons dicta on this Court. In sum, the decision of the Tenth Circuit in Price-Cornelison does not prevent this Court from finding classifications based on sexual orientation are subject to heightened scrutiny under the criteria and cases of the Supreme Court, because any discussion of the subject in Price-Cornelison was dicta, and because the 1995 case solely relied upon can no longer be considered good law in the wake of Lawrence.13 The American Civil Liberties Union (ACLU) has filed a memorandum in support of Plaintiffs Motion as amicus curiae. See Docket No. 65-1. In its brief, the ACLU states that, The Tenth Circuit has held that sexual orientation is not a suspect classification receiving the most [exacting] level of scrutiny . . . . and that there is Tenth Circuit precedent holding that sexual orientation is not a suspect classification. Id. at 3 & 8. Because there is no binding, post-Lawrence authority in this Circuit on this issue (as discussed, supra), Plaintiffs disagree with these statements by the ACLU. However, Plaintiffs do agree with the ACLU that classifications based on sexual orientation meet the Supreme Courts criteria for heightened scrutiny; that the cases of the Tenth Circuit do not preclude this Court from finding classifications based on sexual orientation are quasi-suspect and subject to intermediate scrutiny; and that some jurisdictions have erroneously relied upon pre-Lawrence authorities to support holdings that classifications based upon sexual orientation do not require heightened scrutiny, even after Lawrence.
13
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VI.
CLASSIFICATIONS BASED ON GENDER ALSO REQUIRE HEIGHTENED SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE
The State Defendants argue that Utahs Marriage Discrimination Laws do not differentiate between individuals based on gender, since neither women nor men may marry a person of the same sex. However, the differential treatment or denial of opportunity that is the result of Utahs laws is based upon the gender of the individuals involved. United States v. Virginia, 518 U.S. 515, 532-33 (1996). In other words, but for the gender of each Plaintiff, they could marry the person of their choice. Therefore, because the limitation created on civil marriage under the Marriage Discrimination Laws depends upon an individuals gender, these laws create gender-based classifications. As discussed in Plaintiffs Motion, such classifications are reviewed under intermediate scrutiny. See Plaintiffs Motion at 35. Accordingly, the State Defendants motion must be denied, and Plaintiffs Motion granted, because the State has come forth wi th no evidence to support that its Marriage Discrimination Laws are substantially related to any state interest, let alone an important state interest. Further, the State Defendants e ual application defense was expressly considered and rejected by the Supreme Court in Loving v. Virginia: [T]he State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. . . . [W]e reject the notion that the mere e ual application of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscriptions of all invidious discriminations. . . . In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very
39
heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. 388 U.S. 1, 8(1967). In subsequent cases, the Supreme Court has held that gender classifications like race classifications are subject to heightened scrutiny under the Equal Protection Clause. United States v. Virginia, 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion). As a result, the States e ual application defense of the Marriage Discrimination Laws in this case must suffer the same fate as Virginias prohibition against interracial marriage in Loving. See Baehr v. Lewin, 852 P.2d 44, 68 (Haw. 1993) (plurality) (Substitution of sex for race . . . [in the quoted passage from Loving] yields the precise case before us together with the conclusion that we have reached. ). In addition, the tradition of restricting an individuals choice of spouse based on gender does not rationally further any interest of the State, and in fact harms Utah. Even if preserving traditional marriage based upon opposite gender were a legitimate goal on its own (which it is not, for reasons discussed in this opposition), the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 998 (N.D. Cal. 2010); see also Cott Decl., 35-36 (discussing the historical evolution of spouses respective roles and rights). Utah has eliminated all legally mandated gender roles within marriage, except the requirement of opposite sex in its Marriage Discrimination Laws. Thus, the laws at issue -- which are based on gender stereotypes about the supposed complementarity of men and women in their domestic roles -40
enshrine[] . . . a gender restriction that . . . [is] nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life. Perry, 704 F. Supp. 2d at 998. Moreover, Utahs Marriage Discrimination Laws, in fact, harm the States interest in e uality, because [they] mandate that men and women be treated differently based only on anti uated and discredited notions of gender. Id. In sum, the tradition of restricting an individuals choice of spouse based on gender does not rationally further any legitimate interest of the State, let alone any important interest, and the State Defendants motion must be denied. VII. UTAHS MARRIAGE DISCRIMINATION LAWS FAIL EVEN UNDER RATIONAL BASIS REVIEW
Utahs Marriage Discrimination Laws are subject to heightened scrutiny under United States v. Windsor, 133 S. Ct. 2675 (2013); the Due Process Clause; and the Equal Protection Clause, as discussed, supra, and in Plaintiffs Motion. However, even if this were not the case, Utahs Marriage Discrimination Laws are still unconstitutional because they cannot survive under the very lowest level of scrutiny, rational basis review, and must therefore be struck down. Contrary to the States position, even the rational basis standard is not a toothless one. Lyng v. Intl Union, 485 U.S. 360, 375 (1988). This test, which requires that legislative classifications be rationally related to a legitimate governmental interest . . . contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals. Id. (internal citation omitted; emphasis added); see also Romer v. Evans, 517 U.S. 620, 633 (1996) (By re uiring
41
that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.). In sum, the States purported rationale must find some footing in the realities of the subject addressed by the legislation. Heller v. Doe, 509 U.S. 312, 321 (1993) (emphasis added). Further, it should go without stating that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Romer, 517 U.S. at 634 (emphasis in original) (quoting United States Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). The State of Utah points to interests that are not legitimate in the first instance, as they claim that the State may continue to discriminate against same-sex couples because they have always done so. And, even where the goals may be legitimate, such as those related to children, Utahs Marriage Discrimination Laws do not bear any relationship rational or otherwise to obtaining them, and in fact work against them. Notably, every purported interest presented by the State in this case was already presented to the Supreme Court in Windsor, and rejected as insufficient to overcome the prejudice to same-sex couples from their unequal treatment under DOMA. See Windsor, 133 S. Ct. at 2696 (The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure . . . .); see also BLAG Brief at 28-49 (list of potential state interests rejected by the Supreme Court in Windsor as not sufficient to overcome[] the purpose and effect to disparage and injure samesex couples).
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Again, the State Defendants arguments are not new. They have been presented to the nations highest court in analogous circumstances, and rejected as not justifying a violation of the Due Process Clause of the Fifth Amendment. Likewise, these very same rationales by the State of Utah do not overcome the purpose and effect to disparage and injure Utahs gay and lesbian citizens, in violation of the Fourteenth Amendment. The State Defendants motion must therefore be denied. A. There Is No Rational Relationship Between Excluding SameSex Couples From Marriage and the Promotion of OppositeSex Marriage
This case is not about invalidating the marriage of a man to a woman, or whether the union of a man to a woman through marriage is rational. This case is about whether the State of Utahs exclusion of same-sex couples from civil marriage violates the Fourteenth Amendment. These subjects are not related, as allowing same-sex couples to marry will not impact any rights, protections, responsibilities, and benefits that currently flow to married opposite-sex couples, or otherwise affect the decision of opposite-sex couples to marry, or to stay in marriage. Logically, there is no connection. Moreover, all empirical data shows there is no negative impact of marriage equality on opposite-sex marriage, and the State of Utah has not come forward with any empirical evidence to the contrary. In sum, there is no relationship between excluding same-sex couples from civil marriage, and promoting the incidents of opposite-sex marriage. Without this link, none of the interests advanced by the State that directly correlate to the benefits of oppositesex marriage to individuals, families, and society, may objectively and rationally be
43
reached through Utahs Marriage Discrimination Laws, and the laws fail as a matter of law under rational basis review. 1. The Relevant Rational Relationship Inquiry Is Not Whether It Is Rational for Utah to Permit Opposite-Sex Marriage, but Rather Whether It Is Rational for Utah to Exclude Same-Sex Couples from Civil Marriage to Achieve That Goal
The State Defendants attempt to frame the issue of the States interest in terms of whether it is rational for the State to advance opposite-sex marriage, or whether the union of a man and a woman in marriage is irrational. However, the claim that the intent of the Marriage Discrimination Laws is to promote opposite-sex marriage, and not to exclude same-sex marriage, is belied by the plain language of these laws. Under basic principles of statutory construction, the Court must look first to this language to determine the legislative purpose. See Bo Hae Lee v. Mukasey, 527 F.3d 1103, 1106 (10th Cir. 2008) (We begin by analyzing the plain language employed by [the legislative body], and we must give words their ordinary and natural meaning. Importantly, we assume that the legislative purpose is expressed by the ordinary meaning of the words used) (internal uotation and citation omitted). Under the ordinary meaning of the words used in Utahs Marriage Discrimination Laws, the laws were intended to exclude same-sex couples from marriage, and from any union that would be similar to marriage, and not to promote or enlarge the existing rights of opposite-sex couples to marry: The following marriages are prohibited and declared void: . . . between persons of the same sex. Utah Code Ann. 30-1-2 (2013) (same-sex exclusion clause effective July 15, 1977).
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(1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter. (b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married. . . . Id. at 30-1-4.1 (2013) (effective March 23, 2004). (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect. Utah Const. Art. I, 29 (2013) (effective January 1, 2005). Thus, the intended operation of the Marriage Discrimination Laws, as shown by their plain language, cannot be ignored when framing the rational relationship test. 14 Plaintiffs do not dispute the benefits of marriage to opposite-sex couples, their families, and society at large. Indeed, Plaintiffs (and their families) seek to experience and enjoy these benefits, too. Those that would have this Court view the current dispute in terms of whether opposite-sex marriage is good for the State obfuscate the real issue, which is whether the State has any legitimate objective that is rationally related to excluding same-sex couples from marriage, or any similar union. The State does not, and the laws at issue fail as a matter of law, even under rational basis review.
As discussed, supra, this exclusionary intent is also evidenced through the materials provided to the voters in the November 2004 election, as well as in the floor debates in the Utah House of Representatives.
14
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2.
As a Matter of Law, Any Purported Interest in Encouraging Opposite-Sex Couples to Marry (and Encouraging the Incidents of Such Marriages) Is Not Rationally Related to Utahs Marriage Discrimination Laws
Any purported interest by the State in encouraging opposite-sex couples to marry through the enactment of Utahs Marriage Discrimination Laws is not credible, and fails as a matter of law. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between [Utahs] treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage. Massachusetts v. U.S. Dept of Health & Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (citation omitted); accord Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012); Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 998 (N.D. Cal. 2012); Varnum v. Brien, 763 N.W.2d 862, 901-02 (Iowa 2009). It goes without saying that, prior to enactment of Utahs first Marriage Discrimination Law in 1977, the second Marriage Discrimination Law in 2004, and Amendment 3 in 2005, opposite-sex couples in Utah could and did marry. As such, the enactment of the Marriage Discrimination Laws did not enable opposite-sex marriage, as these marriages were already recognized by the State. The Marriage Discrimination Laws which are clearly written with language to exclude same-sex couples from marriage, and not to promote opposite-sex marriage through any expansion of alreadyexisting rights demonstrate that the intended operation of these laws was and is to exclude same-sex couples from marriage, and to disadvantage these couples in relation
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to their similarly-situated heterosexual counterparts.15 Accordingly, any purported interest by the State in encouraging opposite-sex marriage (and its incidents) must be shown by proving that excluding same-sex couples from marriage benefits opposite-sex marriage in a way that promotes the stated goals of the State. However, this cannot be done. The promotion of opposite-sex marriage is not rationally achieved by excluding same-sex couples from marriage. Logically speaking, there is no objective connection. In addition, the empirical evidence conclusively demonstrates that there is no connection. First, looking to Utah, passage of the Marriage Discrimination Laws did not result in an increase in the marriage rate, or appreciably change the rate of divorce in Utah. For example, since the passage of Amendment 3, the marriage rate in Utah has steadily declined from 9.8% in 2005, to 8.6% in 2011. See Center for Disease Control and Preventions National Vital Statistics System, Marriage Rates by State: 1990, 1995, and 1999-2011, at http://www.cdc.gov/nchs/data/dvs/marriage_rates_90_95_99-11.pdf (last visited on Nov. 8, 2013); see also id., Divorce Rates by State: 1990, 1995, and 19992011, at http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf (last visited
Research shows that same-sex couples closely resemble heterosexual couples. Like their heterosexual counterparts, many lesbian, gay, and bisexual individuals form loving, long-lasting relationships with a partner. Peplau Decl., 12; see also id., 33-37 (Negative stereotypes about same-sex couples are common in America, leading many people to believe and argue that same-sex relationships are fundamentally different from, and inferior to, heterosexual relationships. But the consensus of the scientific research is that this characterization is inaccurate. . . .).
15
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on Nov. 8, 2013) (divorce rate constant at 3.7 - 3.8% for the five years previous to report). Accordingly, Utahs ban on same-sex marriage has not had a positive effect on opposite-sex marriage in the State, including because there is no relationship between allowing same-sex couples to marry, and the decision of opposite-sex couples to marry, or to stay married. Second, in those States that have allowed same-sex marriage, opposite-sex marriage has not been negatively affected by the legal recognition of same-sex couples and their families: There is no scientific support for the notion that allowing same-sex couples to marry would harm different-sex relationships or marriages. The factors that affect the quality, stability, and longevity of different-sex relationships would not be affected by marriages between same-sex couples. . . . [T]he data from Massachusetts suggest that marriage by same-sex couples would not harm marriage for different-sex couples. The finding that marriages between same-sex couples lacks a correlation with breakups between different-sex spouses is entirely consistent with scientific theories about marriage and our knowledge about the sociological and psychological reasons why people divorce. Marriage by same-sex couples does not pose a threat to the stability of marriage for different-sex couples. Peplau Decl., 15 & 63; see also id., 56-62 (discussing the scientific theories and sociological and psychological reasons people marry and divorce, and reviewing data from Massachusetts); Badgett Decl., 69-77 (discussing data from the Netherlands, the first country to allow same-sex marriage, as well as recent data from the United States, and concluding that [A]n analysis of demographic trends, population -based surveys, and qualitative interviews shows no evidence that granting the right to marry to
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same-sex couples will have any effect on heterosexual couples willingness to marry, their probability of divorce, or the non-marital birth rate.). Notably, just weeks ago, the fifteen jurisdictions recognizing same-sex marriages16 filed a brief as amici curiae in the Ninth Circuit on behalf of the same-sex plaintiffs challenging the ban in Nevada, arguing that same-sex marriages in their states has not negatively affected the institution of marriage: Speculation that removing state restrictions on marriage between same-sex couples will erode the institution, as measured by the markers cited below -- marriage, divorce, and nonmarital birth rates -- does not justify discriminatory marriage laws. . . . The Amici States experience with equal marriage rights should carry substantially more weight than surmise or conjecture in the constitutional analysis of the challenged laws. . . . And, the actual data show that the conjecture about the negative impact of same-sex marriage is unfounded. . . . Marriage rates in states that permit same-sex couples to marry have generally improved. . . . Although there are limited data available on different-sex marriage rates in particular, the data that are available do not support the theory that same-sex marriage has a negative effect on different-sex marriage rates. To the contrary, it appears that rates of different-sex marriage in states licensing same-sex marriages are equivalent to rates in states that do not recognize same-sex marriage. In fact, in some states, the number of different-sex marriages increased in the years following the states recognition of same-sex marriages. . . . The Amici States experience directly contradicts the suggestion that allowing same-sex couples to marry leads to increased rates of divorce. In four of the seven states that allowed same-sex couples to marry as of 2011, divorce rates for the years following legalization stayed That number has now increased to seventeen with the recent addition of New Jersey and Hawaii.
16
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at or below the divorce rate for the year preceding it, even as the national divorce rate increased. . . . [Finally], [t]he suggestion that allowing same-sex couples to marry will lead to an increase in nonmarital births is likewise unsupported. 15 States Brief at 30-35 (emphasis added; internal footnotes and citation omitted). In sum, there is simply no evidence that allowing or prohibiting same-sex couples to marry has any effect direct or indirect on the decision of opposite-sex couples to marry, not to marry, or to stay married. Without this link, even if a stated goal of the State is positively associated with an increase in the rate of opposite-sex marriage (like responsible procreation, for example), and even if that goal is a noble one, it is not sufficient to support the exclusion of Utahs same-sex couples from civil marriage, even under rational basis review. B. Utahs Marriage Discrimination Laws Are Not Rationally Related to Any Interest in Bettering the Lives of Utahs Children
Marriage inequality cannot be justified by any genuine interest in bettering the lives of Utahs children. Utahs Marriage Discrimination Laws do nothing to make children being raised by opposite-sex couples better off. And, it is without question that these laws in fact harm, and significantly disadvantage, children raised in households headed by same-sex couples, as recently recognized by the Supreme Court: [Marriage inequality] humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. . . . DOMA also brings financial harm to children of samesex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers same-sex spouses. . . . And it denies or reduces benefits allowed to families upon the loss of a
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spouse and parent, benefits that are an integral part of family security. . . . DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes [DOMAs] purpose and effect to disparage and to injure . . . . Windsor, 133 S. Ct. at 2694-96.17 Plaintiffs agree with the State Defendants that [s]ociety benefits from an institution that provides the best opportunity for a child to reach his or her personal potential as an individual and as a productive citizen all the while minimizing the cost to society of caring for and rearing the child. State Defendants Motion at 28 -29. Plaintiffs also agree that a child is not the mere creature of the state and that those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him [or her] for additional obligations. Id. at 29. Plaintiffs agree that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making lifes difficult decisions, and that democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. Id. at 29 & 31.
Again, the very same justifications for marriage inequality that the State Defendants present in this case (responsible procreation, optimal childrearing, etc.) were already presented to this nations highest court, and rejected, in Windsor. See BLAG Brief at 28-49. Congresss claimed interests in the well-being of children were insufficient to support DOMAs exclusion of same-sex couples from marriage under the Fifth Amendment. Likewise, the State of Utahs purported interests in the well-being of children are not sufficient to support Utahs Marriage Discrimination Laws under the Fourteenth Amendment.
17
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However, Plaintiffs fundamentally disagree with the narrow view that the State Defendants take of families, and who are, should be, and may be parents to children. For example, 3,861 same-sex couples were living together in Utah in 2008. Patterson Decl., 40. Approximately 30% of these Utah couples were raising children under the age of 18, reporting, on average, 2.5 children per household. Id. Thus, in 2008, approximately 2,900 of Utahs children under 18 years of age were being raised by same-sex couples. Id. Moreover, approximately 2% of adopted children in Utah live with a lesbian or gay parent. Badgett Decl., 14. Further, according to a recent poll by the Williams Institute, [a]t 26 percent, Salt Lake City, Utah topped the list of large U.S. cities with the highest percentage of same-sex couples raising children [per capita]. Gay Parents in the U.S.: Salt Lake City Has Highest Percentage of Same-Sex Couples Raising Kids, Huffington Post, at http://www.huffingtonpost.com/2013/05/22/ gay-parents-salt-lake-city-_n_3314969.html (updated Mar. 28, 2013; last visited Nov. 10, 2013). These families exist. They are real. And the children in these families are the only children in Utah that are affected by the laws at issue in this case. The State of Utah should be concerned with the well-being of all children within the State -- not just those children in families the State deems worthy of protection and benefit (i.e., opposite-sex married couples raising their biological children). The State of Utahs unjustified, une ual concern for its citizens, as shown by its denigration of untraditional families through its marriage laws, is precisely why our Constitution includes a guarantee of equal protection under the law. Plaintiffs agree with the State
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Defendants that marriage is societys best means of maximizing private welfare to the vast majority of children, State Defendants Motion at 29, which is why, as a matter of law, it is irrational for the State of Utah to exclude same-sex couples from marriage, when allowing them to marry would benefit the children being raised in same-sex households, while having no effect, and causing no harm, to children being raised in other households. 1. Utahs Marriage Discrimination Laws Are Not Rationally Related to any Interest in Promoting Responsible Procreation
The State Defendants argue that the exclusion of same-sex couples from marriage is justified based on an interest in promoting responsible procreation within marriage. They contend that marriage ine uality is justified because Traditional marriage with its accompanying governmental benefits provides an incentive for opposite-sex couples to commit together to form [][] a stable family in which their planned, and especially unplanned, biological children may be raised. State Defendants Motion at 28. However, the State completely ignores that allowing or denying same-sex couples the right to marry does nothing to alter these accompanying governmental benefits and incentive[s] to opposite-sex couples. This claimed interest is therefore not rationally related to Utahs Marriage Discrimination Laws. In particular, there is no evidence to support that denying marriage equality to gay and lesbian individuals will increase the likelihood that opposite-sex couples capable of procreating will decide to get married; nor does permitting gay and lesbian individuals to marry decrease this likelihood. See Windsor v. United States, 833 F. Supp. 2d 394, 405
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(S.D.N.Y. 2012) (the responsible procreation and childrearing justification for denying marriage e uality is so far removed from the classification, [that] it is impossible to credit and relies on factual assumptions that are beyond the limits of rational speculation) ( uoting Romer v. Evans, 517 U.S. 620, 635 (1996) & Heller v. Doe, 509 U.S. 312, 320(1993)); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010) ([p]ermitting same-sex couples to marry will not affect the number of oppositesex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriage); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 337-39 (D. Conn. 2012) (rejecting purported link between marriage equality and incidence of extra-marital procreation); see also, e.g., Goodridge v. Dept Pub. Health, 79 N.E.2d 941, 963 (Mass. 2003) (The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children.). In sum, Utahs Marriage Discrimination Laws do not make it more likely that opposite sex couples will marry and raise offspring biologically related to both parents. Perry, 704 F. Supp. 2d at 999-1000. Moreover, no state has ever required procreative ability or willingness in order to marry. Indeed, it is beyond dispute that the Constitution protects the right of all heterosexual individuals to marry, irrespective of their ability or desire to procreate, including the elderly, the infertile, and the incarcerated. For example, in Turner v. Safley, the Supreme Court held that even those prisoners with no right to conjugal visits have the fundamental right to marry, including because many important at tributes of
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marriage remain, however, after taking into account prison life . . . [including] expressions of emotional support[,] . . . [the] exercise of religious faith as well as an expression of personal dedication. 482 U.S. 78, 95 (1987). In Zablocki v. Redhail, the Supreme Court struck down a statute barring marriage for individuals with child support obligations, distinguishing the right to marry as separate from procreation and childrearing. 434 U.S. 374, 376-77 & 386 (1978). Finally, the Supreme Court has long held that married couples have the right not to procreate. Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965). Assuming that Utah has an interest in encouraging sexual activity to occur within marriage, Utahs Marriage Discrimination Laws are in fact detrimental to that interest. As a direct result of Utahs laws, same-sex couples are not permitted to engage in sexual activity within marriage, and therefore, [t]o the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, [the Marriage Discrimination Laws] discourage[] that norm . . . . Perry, 704 F. Supp. 2d at 1000. In conclusion, as a matter of law, there is no rational relationship between Utahs purported interest in responsible procreation and its Marriage Discrimination Laws. a. The Fact That Some (Though Not All) Opposite-Sex Couples Are Capable of Procreation Is Not a Distinguishing Characteristic Sufficient to Exclude Same-Sex Couples From Marriage
As discussed throughout this opposition and Plaintiffs Motion, same-sex couples and opposite-sex couples are the same for all purposes relevant to marriage, and the State of Utah has no legitimate interest in differentiating between these unions. See
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Statement of Additional Undisputed Material Facts, supra. Still, the State Defendants contend that the classification in Utahs Marriage Discrimination Laws, which is based purely on sexual orientation and gender, and not on procreative ability or the desire to raise children, should be upheld based on purported interests involving children, by relying on the statement in Johnson v. Robinson, 415 U.S. 361, 383 (1974), that such classifications are acceptable if the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not. Id. However, the State Defendants position is not well taken. First, [w]hen a state distributes benefits une ually, the distinctions it makes are subject to scrutiny under the E ual Protection Clause of the Fourteenth Amendment. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618 (1985). Thus, the State must justify its exclusion of same-sex couples from the benefits of marriage, and not just its inclusion of opposite-sex couples. See, e.g., id. (while purpose of rewarding Vietnam Veterans was valid, equal protection was violated by exclusion from tax benefit those who did not reside in the state before a certain date); see also, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448-50 (1985) (examining the citys interest in denying housing for people with developmental disabilities, not in continuing to allow residence for others); U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 535-38 (1973) (testing the federal governments interest in excluding unrelated households from food stamp benefits, not in maintaining food stamps for related households); Eisenstadt v. Baird, 405 U.S. 438, 448-53 (1972) (requiring a state interest in the exclusion of unmarried couples from lawful access to contraception, not merely an interest in
56
continuing to allow married couples access); Loving v. Virginia, 388 U.S. 1, 12 (1967) (question was not whether Virginia had reasons for providing marriage to same-race couples, but whether restricting the freedom to marry solely because of racial classifications violated e ual protection) (emphasis added). Second, Johnson does not support the State Defendants position. In that case , the issue was whether denying veteran educational benefits to a draftee, conscientious objector who performed alternative civilian service, was a denial of equal protection, considering that these benefits were available to other draftees. The argument was made that such benefits were available in order to encourage people to enlist in the Armed Forces, and that the government could therefore not justify providing the benefits to non-conscientious objector draftees, and not to conscientious objector draftees, considering that neither category of draftees volunteered or enlisted. Id. at 382. The Supreme Court found no equal protection violation because the differentiation was justified by substantial differences between the non-conscientious objectors (whether enlisting or drafted) and the conscientious objectors, including that the latter did not experience the same level of disruption to civilian life. Id. at 376-383. The Court also found that inclusion of the latter would not promote the interest of encouraging and/or making service as a soldier more palatable, since the educational benefits would not make military service more attractive to conscientious objectors, whose refusal to fight in the Armed Services is based upon deeply held religious beliefs. Id. at 382-83.
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Notably, the Supreme Court in Johnson also addressed the argument that the intent of the disparate treatment of conscientious objectors was to penalize them for their beliefs, stating: To be sure, if that were the purpose of the exclusion of the []conscientious objectors from the benefits of the Act, the classification would be unconstitutional, for if the constitutional conception of e ual protection of the laws means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). However, we have not been cited to, nor has our own research discovered, a single reference in the legislative history of the Act to support appellee's claim. We therefore find appellee's claim wholly lacking in merit. Id. at 383 n.18 (italics emphasis in original; bold emphasis added). As this Court is aware, this exact language was recently relied upon by the Supreme Court in Windsor, when it held DOMA unconstitutional because its exclusion of same-sex couples from marriage was based on a desire to harm a politically unpopular group, just like in this case. See United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles . . . . The Constitutions guarantee of e uality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534-535, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973).). Moreover, unlike in Johnson, the legislative history of Utahs Marriage Discrimination Laws is replete with support that the intent of these laws is to disadvantage Utahs gay and lesbian citizens and to further private moral views, not to benefit children. If the States interest were the protection of
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children, then the classification would be drawn differently: opposite-sex couples unable or unwilling to have and raise children would be excluded from marriage, and same-sex couples raising children included. Unlike the draftee soldiers in Johnson, there is no reason to give opposite-sex couples who are unable or unwilling to have and raise children the benefits of marriage, while excluding same-sex couples from marriage -- especially those raising children, either through adoption or procreation.18 In sum, Utahs Marriage Discrimination Laws are unconstitutional because they invidiously discriminate against same-sex couples, who, for all purposes relevant to marriage, are the same as their heterosexual counterparts, including with regard to the benefits of marrying since both same-sex and opposite-sex couples may have children inside or outside of marriage and both sets of couples -- and their children -- benefit in precisely the same ways when those couples are permitted to marry. However, even accepting the States position that the ability to procreate through sexual intercourse is a meaningful difference (which it is not), by denying same-sex couples the rights, protections, responsibilities, and benefits that flow from marriage -- while providing the same to opposite-sex couples incapable and/or unwilling to have children -- Utahs laws treat similarly-situated citizens unequally, without any justification. Contrary to the State Defendants assertions, same-sex couples can and do procreate, albeit through artificial insemination, surrogacy, and/or other assisted reproductive technologies (ART). Indeed, many opposite-sex couples also use these technologies to procreate. Notwithstanding, the latter is allowed to marry, while the former is prohibited under Utahs discriminatory laws. The distinction between families created through sexual intercourse, and those created through adoption or ART is constitutionally meaningless. The Fourteenth Amendment requires the State to treat all children and parents alike, if they are similarly situated.
18
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2.
Utah's Marriage Discrimination Laws Are Not Rationally Related to an Interest in Promoting Optimal Parenting and Childrearing
The State Defendants contend that Utahs exclusionary laws are based on the States interest in the development and parenting of children. Again, this goal is not rationally related to the Marriage Discrimination Laws. Utah has no objective interest in promoting opposite-sex parents over same-sex parents. See Statement of Additional Undisputed Material Facts, supra. Even if it did, excluding same-sex couples from marriage does not promote the parenting of biological children by married opposite-sex parents. Furthermore, since same-sex couples in Utah do in fact have children, the States interest is undermined by its policy of marriage ine uality. The empirical evidence demonstrates that the gender of parents is not determinative of a childs developmental outcome, and that same -sex parents and opposite-sex parents are of equal quality. As Dr. Patterson, a well-respected expert in this field testified: A considerable amount of research has examined the adjustment of children and adolescents who are growing up with lesbian or gay parents and/or same-sex couples. This body of work consists of more than 50 peer-reviewed empirical journal articles, and many additional articles and book chapters intended for professional audiences. . . . . . . Researchers have found children and adolescents of same-sex parents to be as emotionally healthy, as well-behaved, and as socially and educationally successful as their peers who have opposite-sex parents. The idea that there is an optimal gender mix of parents has received no empirical support from psychological research. The notation that children or adolescents with same-sex parents suffered developmental disadvantages due to their parents sexual orientation has likewise gone without empirical support Patterson Decl., 26 & 28.
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The State Defendants and Amici Curiae professors from Brigham Young University and Southern Utah University (Amici Professors) criticize the methodology of the research underlying such conclusions, stating that the studies rely on small, nonrandom samples. However, these studies are the only studies to date on same-sex parenting, they all reach the same findings, and these findings have been replicated, again and again, over a period of decades. As a result, all of the countrys ma jor medical, psychological, public health, and child welfare organizations agree that a parents sexual orientation and gender are not relevant to a childs wellbeing. See APA Brief at 18-26 (There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted); ASA Brief at 6 -14. As such, the relevance of this data cannot be disputed, irrespective of its weight. And indeed, every court to consider the uestion has held that a persons sexual orientation is not relevant to the individuals ability to perform and contribute to society. See, e.g., Windsor v. United States, 699 F.3d 169, 182-83 (2d Cir. 2012). In contrast, there is no evidence to dispute the findings that the sexual orientation or gender of a parent affects childrens developmental outcomes, because the State Defendants studies are irrelevant, as they do not measure the impact of a parents sexual orientation or gender on parenting. All of the State Defendants studies suffer from the same logical flaw: They compare apples to oranges. They compare the children of married heterosexual parents to the children of divorced parents, or the
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children of single parents.19 If anything, these studies show that marriage is good for kids, and that two parents are better than one. But neither of these facts are material to
In particular, the State Defendants and Amici Professors rely on and cite to the work of Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752, 763 (2012), to support their position that children are less likely to thrive when raised by gay and lesbian parents than if raised by heterosexual parents. See, e.g., State Defendants Motion at 35 (citing to Regneruss study to support that children raised by married biological parents fared better than children raised in same-sex households in a range of significant outcomes); Brief of Amici Curiae Professors . . . in Support of Defendants (Amici Professors Brief), Docket No. 72 at 12 & 18 (citing to Regneruss study to support that [d]ecades of study on various parenting structures yield the near uniform conclusion that a biological mother and father provide optimal child outcomes and that the study [Does] Not Confirm the No Differences Conclu sion About Child Outcomes Among Same-Sex Parents). However, Regneruss study suffers from the same fundamental flaw as all of the States other evidence, again comparing apples to oranges. Although the study purports to describe children raised by lesbian mothers and gay fathers, the study itself admits that these are shorthand labels, which do not refer to children raised by same-sex couples. See Patterson Decl., 29. Instead, they refer to a group of adults who reported that at some point during childhood, one of their parents had a romantic relationship with a person of the same sex. See id. But in a breathtaking admission, the authors acknowledge that just under half of such respondents reported that their biological parents were once married. Regnerus, How Different . . . ? at 757. As a result, they concede, a failed heterosexual union is clearly the modal method in these families, which distinguishes [the Regnerus study] from the numerous studies that have been entirely concerned with planned gay and lesbian families. Id. In other words, half of the respondents were raised by heterosexual parents who divorced. Moreover, Fifty-eight (58) percent of those whose biological mothers had a same-sex relationship also reported that their biological mother exited the respondents household at some point during their youth, and just under 14% of them reported spending time in the foster care system, indicating greater-than-average household instability. Id. Yet, when comparing the children of lesbian mothers to the children of intact biological families, the authors made no effort to control for these factors. The State Defendants and Amici Professors also cite to research by Kristen Anderson Moore to support their arguments that research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage and that it is not simply the presence of two parents . . . but the presence of two biological parents that seems to support childrens development. State Defendants Motion at 30 & Amici
(continued...)
19
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this case (except to the extent that they actually support allowing more couples to marry), nor are they disputed. However, even if parenting by individuals of opposite-sex of their biological offspring, within the bonds of marriage, were the optimal parenting paradigm (which has not been shown by empirical evidence),20 Utahs Marriage Discrimination Laws would still bear no rational relationship to promoting this familial structure. Again, as already discussed extensively in this memorandum, excluding gay and lesbian individuals from marriage has no connection to opposite-sex marriage, divorce, cohabitation,
________________________ (...continued)
Professors Brief at 4-5, respectively (citing Moore, et al., Marriage From a Childs Perspective, Child Trends Res. Br. 1-2 & 6 (June 2002)). Again, this is another case of apples to oranges. In fact, the authors of that study have added an introductory note to their study explicitly warning that no conclusions can be drawn from this research about the well-being of children raised by same-sex parents or adoptive parents. See id., (This Child Trends brief summarizes research conducted in 2002, when neither samesex parents nor adoptive parents were identified in large national surveys. Therefore, no conclusions can be drawn from this research about the well-being of children raised by same-sex parents or adoptive parents.). The version of this study included in the State Defendants appendix does not include this introductory note, but the complete article, with the introductory note, is available on the publications website at http://www.childtrends.org/wp-content/uploads/2013/03/MarriageRB602.pdf. In short, like all of the States purported empirical evidence, the Regnerus and Moore studies prove that marriage is good for kids, and that two parents are better than one. But neither of these claims have anything to do with the sexual orientation and gender of parents, and thus, have nothing to do with the Marriage Discrimination Laws. The Court should note that, while there are studies showing that divorce and/or single parenting are sub-optimal for child development outcomes, see Patterson Decl., 20-21, individuals still have the right to divorce, or to have children on their own. The Constitution protects these private decisions, even though there is evidence that the exercise of these decisions may adversely affect children. As such, childrearing, while indisputably important to society, is not determinative of whether the government can intrude on an individuals constitutionally-protected and fundamental rights, such as the right to marriage.
20
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childrearing, or otherwise. Utahs exclusion of same-sex couples from marriage in fact undermines the interests of parenting and childrearing. In 2008, there were approximately 2,900 children under the age of 18 being raised in same-sex couple homes in Utah. Patterson Decl., 40. The inability of the parents of these children to marry excludes these families from the benefits of marriage. Utahs laws in fact result in these households being less stable for these children, whereas allowing same-sex couples to marry would promote the household stability in which children flourish. See Goodridge v. Dept Pub. Health, 79 N.E.2d 941, 963 (Mass. 2003) (Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying [the advantages provided by marriage].); Baker v. State, 744 A.2d 864, 882 (Vt. 1999) (If anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.); see also Patterson Decl., 40. Prior to the Supreme Court holding DOMA unconstitutional in Windsor, the United States District Court for the District of Connecticut criticized the Acts definition of marriage for its effects on children: DOMAs denial of federal marital benefits to same -sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. . . . DOMA ham-fistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
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DOMA . . . inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections . . . [including the right] to take leave to care for a spouse with a serious health condition. . . . [The denial of this benefit, in turn, puts the household and its children] under greater stress in attempting to cope with the serious illness of a parent. Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 338 (D. Conn. 2012). Subsequently, in Windsor, the Supreme Court also acknowledged that the marriage inequality promoted by DOMA was injurious to children, including that DOMA humiliates tens of thousands of children now being raised by same-sex couples [and] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Windsor, 133 S. Ct. at 2694. The children in Utah being raised by same-sex couples are similarly injured by Utahs laws. Utahs Marriage Discrimination Laws do not increase the likelihood that children will be raised by their married biological parents, but instead harm and injure children that do not fit the State Defendants mold. An interest in the development and parenting of children cannot rationally justify marriage inequality in Utah, including because the only effect the Marriage Discrimination Laws have on children is to stigmatize and humiliate the children of same-sex couples, while at the same time denying them the protections afforded by marriage to children of opposite-sex couples. C. Preserving Tradition, and Avoiding the Consequences of Change, Are Not In and of Themselves Legitimate Goals of the State
The State Defendants assert that Utah has an interest in preserving the ancient and ongoing tradition of marriage between a man and a woman. State Defendants
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Motion at 38. They further assert that the consequences of marriage equality are unknown, and that Utah is therefore justified in proceeding with caution. Id. However, such arguments are circular: They claim that the State may continue to discriminate against same-sex couples because they have always done so. But these are not legitimate interests of the State sufficient to justify Utahs unconstitutional laws -- even under a deferential standard of review. Again, the Supreme Court rejected these tradition-based arguments in Windsor.21 Accordingly, this Court must also reject these purported rationales. 1. Preserving Traditional Marriage, Solely for Traditions Sake, Is Not a Legitimate Goal of the State
The State Defendants contend that Utah has an interest in preserving a traditional definition of marriage.22 However, deference to tradition, by itself, is not a legitimate state interest sufficient to survive rational basis review. See Heller v. Doe, 509 U.S. 312, 326 (1993) (Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.); Williams v. Illinois, 399 U.S. 235, 239 (1970)
The Supreme Court in Windsor recognized the long history and tradition of man/woman marriage. See Windsor, 133 S. Ct. at 2689 ([U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage, between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.). But this history and tradition was not enough to justify DOMA, and the same analysis applies here. As discussed, supra, many tenets of traditional marriage have already been rejected by our society and the courts. Accordingly, the notion that marriage is static, and that there is a traditional form of marriage to preserve, fails in the first instance.
22
21
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([N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack). Nor can tradition alone validate the notion even if held by a majority of the citizens that same-sex relationships are of lower quality, or even immoral.23 See Lawrence v. Texas, 539 U.S. 558, 577 (2003) ([T]hat the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .). Rather, the state must have an interest apart from the fact of the tradition itself. Perry, 704 F. Supp. 2d at 998. The invocation of tradition as a basis for legislation should invoke the suspicion of this Court. Throughout our nations history, tradition has been used to justify what we now recognize as invidious discrimination. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 550 (1896) (the legislature is at liberty to act with reference to the established usages, customs and traditions of the people); Muller v. Oregon, 208 U.S. 412, 421 (1908) ([H]istory discloses the fact that woman has always been dependent upon man.). In the context of marriage, if deference to tradition was a legitimate goal, then laws restricting marriage based on race would have survived. But the Supreme Court understood that even the long duration of an unconstitutional law does not justify its perpetuation. See Loving v. Virginia, 388 U.S. 1, 7 & 12 (1967) (holding Virginias antimiscegenation statutes unconstitutional under the Fourteenth Amendment, despite the
This is particularly true when all evidence concludes that same-sex relationships are in fact not inferior to opposite-sex relationships. See Statement of Additional Undisputed Material Facts, supra.
23
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fact that [p]enalties for miscegenation . . . [were] common in Virginia since the colonial period); see also Lawrence, 529 U.S. at 577-78 ([N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.) (internal uotation omitted). In sum, as our understanding of equality evolves, the illegitimacy of laws that might once have seemed too entrenched in custom and tradition to question become apparent. See, e.g., Windsor, 133 S. Ct. at 2692-93 (New Yorks recognition of samesex marriage reflects both the communitys considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of e uality.). Accordingly, tradition by itself cannot form a legitimate basis for Utahs Marriage Discrimination Laws, and the Court should reject any State interest in preserving traditional marriage, for its own sake, as a matter of law. 2. Utahs Marriage Discrimination Laws Are Not Rationally Related to the Purported Interest in Proceeding with Caution When Implementing Social Changes
The State Defendants contend that Utah has a legitimate interest in avoiding the unknown consequences of allowing gay and lesbian individuals equal access to marriage. However, the belief that same-sex marriage will result in a corrosion of marital norms, and ultimate societal devaluation of marriage as an institution, is not factually supported, and appears to be based solely on the fears of same-sex marriage opponents, which are in turn based upon speculation and their unsubstantiated private views of the inferiority of the committed relationships of gay and lesbian individuals. This is not sufficient to survive scrutiny even at the lowest levels. See City of Cleburne
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v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (mere negative attitudes or fear, unsubstantiated by factors which are properly cognizable are not permissible bases for differential treatment). In any case, the empirical evidence is that the inclusion of same-sex couples in the institution of marriage does not amount to the sweeping social change that its opponents fear. Perry, 704 F. Supp. 2d at 999. As already discussed, supra, where states and other countries have legalized same-sex marriage, the evidence shows that there is at least a neutral, if not positive, effect on the institution of marriage. See Peplau Decl., 15 & 56-63; Supp. Peplau Decl., 4-7; Badgett Decl., 69-77 (discussing the empirical data of states and countries allowing same-sex marriage); 15 States Brief at 22-31 (concluding that, based on the experience of states allowing same-sex marriage, Speculation About the Erosion of the Institution of Marriage Is Demonstrably False). Further, as the U.S. Court of Appeals for the Ninth Circuit concluded in Perry, there [can] be no rational connection between the asserted purpose of proceeding with caution and the enactment of an absolute ban, unlimited in time, on same -sex marriage in the state constitution. Perry v. Brown, 671 F.3d 1052, 1090 (2012) (emphasis in original). While this decision has now been vacated on jurisdictional grounds, see Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the logic of the Ninth Circuit is no less
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compelling here, where Utah has enacted such an absolute ban in its state constitution, thereby belying any purported interest in proceeding with caution.24 In sum, fear of the unknown alone has never been a sufficient basis to burden a class of citizens, and is not a proper goal of the State under rational basis review. Accordingly, Utahs Marriage Discrimination Laws cannot be justified, as a matter of law, by any purported interest by the State in proceeding with caution, particularly when nothing but fear, prejudice, and speculation fuels that caution. D. Utahs Marriage Discrimination Laws Damage the State and Same-Sex Couples
Not only is there no rational relationship between the Marriage Discrimination Laws and any purported interest by the State, but it is undisputed that the ban on samesex marriage has a significant, negative impact on the State, as well as Utah citizens in same-sex committed relationships. The negative economic impact on Utah comes in a number of ways from the ban on same-sex marriage. The State and its local subdivisions lose significant tax and fee revenue resulting from weddings of same-sex couples. Badgett Decl., 10. In addition, the decrease in the number of couples entering legally-recognized marriages as the The State Defendants contend that this Court should be wary to uphold the constitutional rights of Plaintiffs, and the gay and lesbian citizens of Utah, because doing so may be irreversible. However, Plaintiffs are not a science experiment. This is not a trial run, and this Court should reject any suggestion that these constitutional rights, once restored to Plaintiffs, should or could be taken away at some time in the future. Indeed, the lack of merit of this argument is demonstrated by the fact that in every case where a court has struck down as unconstitutional laws invidiously discriminating against a class of persons, such an argument could have (and maybe was) made, such as in Loving.
24
70
result of the Marriage Discrimination Laws imposes State costs for additional spending on compensation care for uninsured people and the loss of productivity generated by unequal treatment of same-sex couples in the workplace. Id. The State is also harmed by being a comparatively less attractive location for highly qualified workers and business as a result of Utahs discriminatory laws. Id., 15. In addition, the Marriage Discrimination Laws impose substantial economic harms on same-sex couples residing in Utah and their children in a number of ways. The Marriage Discrimination Laws eliminate, for same-sex couples, the economic efficiencies and cost savings associated with entering a legally recognized relationship, as compared to being single. Id., 11. In addition, the Marriage Discrimination Laws deprive same-sex couples and their families of significant direct and indirect economic benefits from the State and federal government that flow as a natural consequence from the status of being legally married. Id. Finally, the harms of Utahs same-sex ban are not only financial. It is undisputed that marriage provides stability and a social fabric that benefits society as a whole. The individuals and children being raised in same-sex households are being denied those benefits. Further, marriage increases the psychological and physical health of those individuals in marriage. Peplau Decl., 38-40. In sum, the long-standing policy of our nation is that marriage is a public good. Accordingly, excluding couples from the institution runs contrary to our social policy.
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VIII.
THE STATE OF UTAH MAY NOT CATEGORICALLY DENY RECOGNITION OF SAME-SEX MARRIAGES PERFORMED IN OTHER STATES
Utahs refusal to recognize the marriages of Plaintiffs Archer and Call, who married in Iowa, violates due process and equal protection, for all of the reasons set forth by Plaintiffs in their pending motion for summary judgment, including under the Supreme Courts recent analysis in United States v. Windsor, 133 S. Ct. 2675 (2013). See Plaintiffs Motion at 37-39. Contrary to the State Defendants arguments, federal law does not authorize the State of Utah to discriminate, without justification, against same-sex couples living in Utah that have legally married in other states, because the Constitution forbids such unequal treatment and denial of the right to marriage. Thus, Plaintiffs agree with the State Defendants that Section 2 of DOMA is wholly unremarkable, but for the reason that no act of Congress may override the protections guaranteed by the Constitution. See U.S. Const. Amend. V; see also, e.g., Windsor, 133 S. Ct. 2675. Accordingly, Section 2 of DOMA is irrelevant to the Courts analysis of whether Utahs policy of non-recognition violates the Fourteenth Amendment. In considering the interplay of the rights of Plaintiffs Archer and Call, the power of the State of Utah, the authority of sister states, and the principles protected by the federal Constitution, it is important to bear in mind the purposes of federalism. The Supreme Court has emphasized that federalism does not just safeguard the various interests of the states and the federal government. Properly understood, [f]ederalism [also] secures the freedom of the individual. Bond v. United States, 131 S. Ct. 2355, 2364 (2011). By denying any one government complete jurisdiction over all the
72
concerns of public life, federalism protects the liberty of the individual from arbitrary power. Id. Utahs broad authority over the law of domestic relations is subject to constitutional guarantees. See Windsor 133 S. Ct. at 2691 ([s]tate laws . . . regulating marriage, of course, must respect the constitutional rights of persons). Accordingly, the State of Utah does not have absolute and exclusive jurisdiction over Plaintiffs Archers and Calls marital status, which a sister state validly conferred and which the Constitution protects. In Windsor, the Supreme Court held that same-sex spouses who have entered into valid marriages have a constitutionally protected interest in their marital status and that the categorical refusal of the federal government to recognize the valid marriages of same-sex couples was unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. Windsor, 133 S. Ct. at 2695. Like Section 3 of DOMA, which the Supreme Court struck down in Windsor, Utahs Marriage Discrimination Laws treat the valid marriages of same-sex couples as if they did not exist, denying those marriages recognition for all purposes under state law, just as DOMA did under federal law. As with DOMA, the injury that Utahs laws inflict on legally married same-sex couples is a deprivation of an essential part of the liberty protected by the [Constitutions due process guarantee]. Id. at 2692. Utah, almost without exception, respects the marriages of couples who married in other states, but it categorically refuses to recognize the otherwise valid marriages of same-sex couples for any purpose under state law. Utahs refusal to recognize Plaintiffs marriages constitutes an extraordinary disruption of their lives and severely
73
infringes upon their protected interests in the comprehensive set of protections and responsibilities afforded by marriage, which cannot be fully replicated by other means. The resulting negative impact on Plaintiffs Archers and Calls stability, security, and dignity is as severe as that caused by federal non-recognition in Windsor, exposing their families to an alarming array of legal vulnerabilities and harms, from the mundane to the profound. Id. at 2694. As with DOMA, because the purpose and effect of Utahs discriminatory marriage laws are precisely to achieve that unequal treatment by excluding persons who are in a lawful same-sex marriage from the same protections given to other married persons, those laws violate the Constitutions due process guarantee. Id. Utahs refusal to respect Plaintiffs existing marriages also denies them e ual protection. Like DOMA, Utah law facially targets the class of married same-sex couples. Utah has thus created two categories of couples who married out of state: opposite-sex couples married out of state, whose marriages are fully recognized in Utah, and same-sex couples married out of state, whose marriages are categorically denied recognition. In Windsor, the Supreme Court held that DOMAs targeting of that class re uired careful consideration under both due process and e ual protection review for two reasons: first, because the statute departed from the federal governments longstanding practice of deferring to the states to determine marital status; and second, because it did so in order to subject a particular group of married couples to unequal treatment. Id. at 2694. The same equal protection analysis applies here. Utahs refusal to respect plaintiffs valid out-of-state marriage constitutes
74
discrimination[] of an unusual character. Id. at 2692-93. And like DOMA, Utahs laws prohibiting recognition of Plaintiffs marriage were not enacted for any reason independent of or unrelated to excluding married same-sex couples from recognition, but to achieve that very result. Such laws fail the requirement of equal protection. Id. In our federal system, in which interstate travel is ordinary, expected, and constitutionally protected, a states power to marry couples within its borders is enhanced if the state can be confident that the states conferral of marital status on couples will be respected by other states. A states categorical exclusion of an entire class of marriages from other states without adequate justification therefore is an affront to our nations federalism of a sort that has been rare in our constitutional tradition. IX. THE STATE DEFENDANTS DO NOT DENY THAT INJUNCTIVE RELIEF IS AVAILABLE TO PLAINTIFFS UNDER 42 U.S.C. 1983, AND A DETERMINATION AS TO WHETHER PLAINTIFFS WOULD BE ENTITLED TO ANY MONETARY AMOUNT IS PREMATURE
Foremost, Plaintiffs seek to enjoin the State Defendants from enforcing Utahs Marriage Discrimination Laws, so that they may be married, or have the State recognize their out-of-state marriage. Under the Ex Parte Young exception to a states sovereign immunity, this type of relief is clearly available to Plaintiffs under their 1983 claim, and the State Defendants do not deny that this Court may dispense injunctive relief in this case (other than to argue that such relief is not merited). See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998) (Ex Parte Young recognizes an exception to Eleventh Amendment immunity under which a state officer may be enjoined from taking any steps towards the enforcement of an unconstitutional enactment, to the injury of complainant.).
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However, the State Defendants argue in their motion that Plaintiffs are not entitled to any monetary relief if they prevail, including attorneys fees. While Plaintiffs reserve the right to more fully respond to these arguments at the appropriate juncture, this issue is premature. Plaintiffs therefore respectfully request that this Court defer briefing and ruling on the narrow issue of whether Plaintiffs may be entitled to attorneys fees under 42 U.S.C. 1988 until the issue becomes germane. CONCLUSION For all of the reasons discussed in this opposition, and in Plaintiffs pending motion for summary judgment, the State Defendants motion should be denied. DATED this 22nd day of November, 2013. MAGLEBY & GREENWOOD, P.C.
Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that I am employed by the law firm of MAGLEBY & GREENWOOD, P.C., 170 South Main Street, Suite 850, Salt Lake City, Utah 84101, and that pursuant to Rule 5(b), Federal Rules of Civil Procedure, a true and correct copy of the foregoing PLAINTIFFS OPPOSITION TO MOTION OF THE GOVERNOR AND ATTORNEY GENERAL FOR SUMMARY JUDGMENT was delivered to the following this 22nd day of November, 2013, by: [ ] [X] [X] [X] Hand Delivery Depositing the same in the U.S. Mail, postage prepaid CM/ECF System Electronic Mail Ralph Chamness rchamness@slco.org Darcy Goddard dgoddard@slco.org SALT LAKE COUNTY DISTRICT ATTORNEYS 2001 South State Street, S3500 Salt Lake City, Utah 84190-1210
Philip S. Lott phillott@utah.gov Stanford E. Purser spurser@utah.gov John E. Swallow UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah84114-0856 Attorneys for Defendants Gary R. Herbert and John Swallow
Attorneys for Defendant Sherrie Swensen
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Case 2:13-cv-00217-RJS Document 85-1 Filed 11/22/13 Page 1 of 4
Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. APPENDIX TO PLAINTIFFS OPPOSITION TO MOTION OF THE GOVERNOR AND ATTORNEY GENERAL FOR SUMMARY JUDGMENT
DECLARATIONS Exhibit 1 Page 1 26 43 48
Declaration of M.V. Lee Badgett, Ph.D. Exhibit A Exhibit B Curriculum Vitae of M.V. Lee Badgett, Ph.D. Bibliography
Declaration of George Chauncey, Ph.D. Source: Docket No. 86-2, pp. 132-183, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of George Chauncey, Ph.D. Bibliography
87 96 101
Declaration of Nancy F. Cott, Ph.D. Source: Docket No. 86-2, pp. 3-24, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of Nancy F. Cott, Ph.D. Bibliography
125 137 144 162
Declaration of Charlotte J. Patterson, Ph.D. Exhibit A Curriculum Vitae of Charlotte J. Patterson, Ph.D. Bibliography
Exhibit B 5
189 198
Declaration of Letitia Anne Peplau, Ph.D. Source: Docket No. 86-2, pp. 45-91, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of Letitia Anne Peplau, Ph.D. Bibliography
221 238
Exhibit 6
Supplemental Declaration of Letitia Anne Peplau, Ph.D. Source: Docket No. 98-2, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Declaration of Gary M. Segura, Ph.D. Source: Docket No. 86-3, pp. 3-56, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 2:12-cv-00578-RCJ-PAL in the United States District Court for the District of Nevada Exhibit A Exhibit B Curriculum Vitae of Gary M. Segura, Ph.D. Bibliography
Page 246
251
283 303
MEMORANDA FROM OTHER LEGAL PROCEEDINGS Exhibit 8 Page 306
Brief of the United States on the Merits Question Source: American Bar Associations Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives Source: American Bar Associations Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief of the American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Psychiatric Association, the American Psychoanalytic Association, the California Medical Association, the National Association of Social Workers and Its New York City and State Chapters, and the New York State Psychological Association as Amici Curiae on the Merits in Support of Affirmance Source: American Bar Associations Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court
374
10
451
Exhibit 11
Brief of Amicus Curiae American Sociological Association in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor Source: American Bar Associations Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief of Constitutional Law Scholars Bruce Ackerman, Ash Bhagwat, Lee Bollinger, Erwin Chemerinsky, Michael C. Dorf, Lee Epstein, Larry Friedman, John C. Jeffries, Jr., Lawrence Lessig, William Marshall, Frank Michelman, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence Tribe, and William Van Alstyne as Amici Curiae Addressing the Merits and Supporting Affirmance Source: American Bar Associations Online Publication of the Briefs Filed in United States v. Windsor, No. 12-307 in the United States Supreme Court Brief of Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington as Amici Curiae in Support of Appellants Source: Docket No. 24, Beverly Sevcik, et al. v. Brian Sandoval, et al., No. 12-17668 in the United States Court of Appeals for the Ninth Circuit
Page 512
12
556
13
601
OTHER Exhibit 14 Page 644
February 24, 2004 Transcript, 2004 General Legislative Session, Utah House of Representatives (Excerpts) Source: Source audio from website of Utah State Legislature at http://le.utah.gov/asp/audio/index.asp?Sess=2004GS&Day=0&Bill= HJR025&House=H
Exhibit 1
App. 000001 - Pls.' SJ Opp'n, Kitchen v. Herbert
Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. DECLARATION OF M.V. LEE BADGETT, Ph.D.
I, M.V. Lee Badgett, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT 1. I am a Professor of Economics at the University of Massachusetts Amherst, where
I have taught since 1997. I also serve as the Universitys Director of the Center for Public Policy and Administration. I have been retained by counsel for plaintiffs in Kitchen v. Herbert to prepare this expert report in connection with the above-referenced litigation. I have actual knowledge of the matters stated in this expert report and could and would so testify if called as a witness. 2. I am currently a Williams Distinguished Scholar at the Williams Institute for
Sexual Orientation Law and Public Policy at the UCLA School of Law, where I served as research director from 2006 to 2013. From 2005 to 2007, I was a visiting professor at UCLA School of Law. Prior to those positions, from 1990 to 1997 I was an assistant professor of Public Affairs at the School of Public Affairs, University of Maryland, College Park. I have conducted research at the Amsterdam School for Social Science Research, University of Amsterdam, and conducted research and taught at the Womens Studies and Lesbian and Gay Studies programs of Yale University. I received my A.B. in Economics from the University of Chicago in 1982 and my Ph.D. in Economics from the University of California, Berkeley, in 1990. 3. The primary focus of my research and teaching is in the fields of Economics,
including Microeconomics, Labor Economics, and Sexual Orientation and Economics; and Sexual Orientation and Public Policy, including sexual orientation discrimination, family structures and family policy, same-sex partner recognition in the US and Europe, domestic partner health care and pension benefits, and the health insurance status of lesbians and gay men. 4. I am the author of two books and the co-editor of a third on sexual orientation
economics and public policy: Money, Myths and Change: The Economic Lives of Lesbians and Gay Men (2001); Sexual Orientation Discrimination: An International Perspective (2007); and
1 App. 000003 - Pls.' SJ Opp'n, Kitchen v. Herbert
When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009). I have also authored numerous published articles and book chapters, as set forth in my curriculum vitae. 5. My background, experience, and list of publications from the last 10 years are
summarized in my curriculum vitae, which is attached as Exhibit A to this affidavit. 6. In the past four years, I have testified as an expert through declaration, trial, or
deposition in Bassett v. Snyder, Case No. 2:12-cv-10038 (E.D. Mich.); Perry v. Schwarzenegger, Case No. 09-CV-2292 VRW (N.D. Cal.); Glossip v. Missouri Dept of Transp. and Highway Patrol Employees Ret. Sys., No. 10-CC00434 (Mo. Cir. Ct., Cole County); Diaz v. Brewer, Case No. CV-09-2402-PHX-JWS (previously captioned Collins v. Brewer) (D. Ariz.); Sevcik v. Sandoval, Case No. 2:12-CV-00578RCJ-PAL (D. Nev.); Darby v. Orr, Lazaro v. Orr, Nos. 12 CH 019718 & 12 CH 019719 (Circuit Ct., Cook County); and Garden State Equality et al. vs. Dow. 7. In preparing this affidavit, I have reviewed the materials listed in the attached
Bibliography (Exhibit B). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this affidavit, as additional support for my opinions. I have also relied on my years of experience in this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein. 8. I am being compensated an hourly rate for actual time devoted, at the rate of
$150.00 per hour for testimony I may be required to give in person in this matter, and any out-ofpocket expenses that I would incur if required to give such testimony. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. I. SUMMARY OF EXPERT OPINIONS 9. I have been asked for my expert opinion concerning the economic impact of
Utahs exclusion of same-sex couples from marriage on Utah and its cities and counties and the 2 App. 000004 - Pls.' SJ Opp'n, Kitchen v. Herbert
economic impact of the exclusion on same-sex couples and their children. This expert report also includes certain demographic information about same-sex couples and their children, which is based on my prior research and other scholarly research. The report also documents evidence that no harm to the institution of marriage would result from allowing same-sex couples to marry in Utah. 10. The marriage exclusion imposes substantial costs on Utah and its counties and
cities. First, the state and local subdivisions lose significant tax and fee revenue that, but for the marriage exclusion, would have accrued as a result of weddings of same-sex couples. Second, denial of marriage imposes state costs for (1) additional spending on uncompensated care for uninsured people, and (2) the loss of productivity generated by unequal treatment of same-sex couples in the workplace. 11. The marriage exclusion imposes substantial economic harms on same-sex couples
residing in Utah and their children in at least two ways. First, there are many same-sex couples who would marry in Utah but cannot; for these couples the marriage exclusion eliminates the economic efficiencies and cost savings associated with entering a legally recognized relationship, as compared to remaining single. Second, for same-sex couples who have married in another state or in the District of Columbia, the failure of Utah to recognize their marriages deprives those same-sex couples and their families of significant direct and indirect economic benefits provided by the State of Utah. II. BASIS AND REASONS FOR OPINIONS A. 12. Demographics of Same-Sex Couples and Their Families For purposes of the demographic information in this report, I use the term same-
sex couple to mean two people of the same sex who live together and indicated on a Bureau of the Census survey that they are either unmarried partners or spouses. Because the U.S. Census Bureau has changed some of its data collection practices, there are two different sources of 3 App. 000005 - Pls.' SJ Opp'n, Kitchen v. Herbert
information about same-sex couples in Utah used in this report. The first source is the American Community Survey (ACS), which is a survey of about 2 million U.S. households per year. The results here come from the Utah samples pooled for 2009-2011. The second source is the 2010 Census, which consisted of a short questionnaire with minimal demographic data and no long form for any households. In its analysis of the 2010 Census data, the Census Bureau made corrections to some of the questions used to generate the count of same-sex unmarried partner couples, and in this report I use the counts that are labeled by the Census Bureau as their preferred estimates of same-sex couples for the most up-to-date count of same-sex couples in Utah (Lofquist et al., 2012). 13. The Census Bureau counted 3,909 same-sex couples living together in Utah in
2010 (U.S. Census Bureau, Detailed Tables, 2011, App Tab 6b). Same-sex couples comprised at least 0.4% of all households in Utah (Lofquist, et al., 2012). Approximately 20% of these same-sex couples in Utah are raising children under the age of 18 (U.S. Census Bureau, Supplemental Tables, 2011). 14. Additional findings about same-sex couples living in Utah are available from the
2011 American Community Survey. People in same-sex couples are active contributors to Utahs economy, culture, and future: 90% are employed and 8% are veterans, compared with 67% of people in married different-sex couples who are employed and 19% of whom are veterans (not statistically significantly different from the percentage of veterans among same-sex couples). Approximately 2% of adopted children in Utah live with a lesbian or gay parent (Gates, Badgett, Macomber, and Chambers, 2007). B. The Marriage Exclusion Imposes Costs on State and Local Governments 15. The State of Utah and various local counties and cities have been suffering and
will continue to suffer increased costs as a direct result of the marriage exclusion. I estimate that over the next three years the States economy will lose at least $15.5 million in business revenue 4 App. 000006 - Pls.' SJ Opp'n, Kitchen v. Herbert
and $1 million in tax revenue that would have accrued as a result of weddings by same-sex couples. The States economy will also suffer as Utah remains a comparatively less attractive location for highly qualified workers and businesses. (i) Lost wedding-related business and tax revenue for resident and non-resident
couple marriages 16. To assess the amount of wedding-related tax revenue lost by the State of Utah, I
first estimated the number of same-sex couples who would marry in Utah but cannot as a result of the marriage exclusion. I then multiplied the number of couples by an estimate of average spending per wedding. 17. First, I use figures from Massachusetts, in which 51% of in-state same-sex
couples married from 2004 to 2007 (three full years). Based on those figures, I predict that approximately one-half of Utahs same-sex couples would marry in the first three years of having the option to do so. Half of the 3,909 same-sex couples in Utah in the 2010 Census would be 1,955 couples. I assume that all of the 1,955 couples will marry. 18. Based on wedding industry statistics, I conservatively predict that in-state couples
would spend 25% of the $24,732 reportedly spent on the average wedding in Utah, or $6,183 per wedding (The Wedding Report, 2012). This assumption is consistent with the experience in Massachusetts, in which the average wedding spending by same-sex couples was approximately $7,400 per wedding (Goldberg, Steinberger, and Badgett, 2009). The likely new direct wedding spending, then, would be $12.1 million. 19. In addition to spending by the couples who marry, those couples are likely to
invite guests who live in other states and would therefore be injecting new spending into the states economy. In Massachusetts, same-sex couples reported 16 out-of-state guests per wedding. If same-sex couples in Utah were to do the same and their guests spent only one day in Utah for the wedding, state tourism research suggests that each of those guests would spend a 5 App. 000007 - Pls.' SJ Opp'n, Kitchen v. Herbert
total of $110 on food, lodging, and other expenses. Using the number of weddings above suggests that spending by out-of-state guests would generate $3.4 million. 20. The total lost spending by the Utah couples and out-of-state guests would thus be
$15.5 million over three years. That lost spending would generate $1 million in state and local sales tax revenue, given the states sales and hotel tax rates (Tax Foundation, 2013). 21. After the pent-up demand for marriage is seen over the first few years, same-sex
couples in Utah and elsewhere would continue to generate wedding-related spending, tax, and fee revenues for businesses and state and local governments, although at a lower level. 22. It is reasonable to expect an added boost to Utahs economy from out-of-state
couples who would travel from other states to marry in Utah. For purposes of making a conservative estimate, however, I leave out that amount. It has become increasingly difficult to predict the number of same-sex couples likely to travel to Utah to marry, because (1) the states already allowing same-sex couples to marry will continue to absorb the pent-up demand for marriage until Utah allows same-sex couples to marry and (2) even when Utah allows same-sex couples to marry, the state would be competing with other states for the remaining unmarried same-sex couples. 23. Yet the economic boost due to out-of-state couples marrying in Utah could be
substantial. Since only thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia allow same-sex couples to marry as of the date of this report, same-sex couples who wish to marry in the other states must travel to do so. State marriage license statistics in Iowa and Connecticut show that about 60% of licenses issued to same-sex couples have been to out-of-state same-sex couples (Badgett and Herman, 2011, p. 10). Same-sex couples from nearby states form the largest groups of out-of-state marriage licenses issued in those states. Demand for marriage by same-sex couples from other states is likely to
increase now that the federal government will recognize the marriages of same-sex couples, regardless of place of domicile, for federal income taxation, estate taxes, the Family and Medical Leave Act, employment benefits governed by ERISA, federal employee benefits, immigration rights, and perhaps other federal benefits. 24. It is also possible that some of the same-sex couples living in Utah have already
married in one of the thirteen states where they could have done so or in the District of Columbia. The state might continue to lose the potential wedding spending from in-state couples who travel now to other states to marry since they cannot marry in Utah (but return to live in Utah). That loss could be at least partially balanced out by spending from out-of-state couples same-sex couple traveling from neighboring states if Utah were to allow same-sex couples to marry. Therefore, I make no adjustments to the estimates of new weddings for already-married same-sex couples. (ii) 25. General productivity loss As discussed further below, the marriage exclusion is likely to result in additional
workplace costs to individual productivity as a result of lesbian, gay, and bisexual employees being denied the same rights as other employees who are married or could marry (see paragraphs 51-53, infra, describing costs of workplace discrimination for same-sex couples). These individual productivity losses also inflict harms upon the State. Institutionalized conditions of inequality, such as state denial of the right to marry and private denial of employment benefits associated with marriage, will likely reduce commitment to working in Utah or to working for companies that have differential treatment of married and unmarried couples. These productivity losses will reduce business profits and individual incomes, leading to lower income and business tax revenue. (iii) Higher costs for health care of uninsured same-sex partners
26.
Because many employers do not offer health care benefits to domestic partners,
the number of uninsured Utahns is higher than it would be if same-sex couples could marry. This situation results in increased state expenditures on uncompensated care (Hadley, et al., 2008). Uninsured workers increase the financial burden on State and local government by requiring increased expenditures on various programs, including Utahs Medicaid program and other stateand locally-funded programs to reimburse providers for uncompensated care. They also increase the financial burden on local governments that provide health care through county hospitals that are not fully reimbursed for the services they provide to some uninsured patients. (iv) 27. Creative class loss As a result of the marriage exclusion, Utah is likely to find it more difficult to
attract and retain some highly qualified members of the labor force, particularly those in the creative class occupations that may be central to further economic growth in high technology industries (Florida and Gates, 2001). By refusing to marry same-sex couples, Utah is at a disadvantage in attracting highly skilled workers. In particular, heterosexual and nonheterosexual members of the creative class, or the highly-educated, relatively young workers in creative occupations such as IT workers, engineers, scientists, teachers, artists/entertainers, banking/finance workers, managers, and medical professionals, might be deterred from moving to Utah. 28. Two sources of data suggest that marriage equality enhanced Massachusetts
ability to attract and retain workers in the creative class. First, a study of Census data found that migration patterns shifted in Massachusetts before and after same-sex couples could marry (Gates, 2009). In the three years before same-sex couples could marry, Massachusetts lost 603 people in same-sex couples. In the three years after same-sex couples could marry, the state saw a net gain of 119 people in same-sex couples. Net migration to Massachusetts by people in same-sex couples who are in creative-class occupations accounted for the migration shift
between the two periods. The timing suggests that the right to marry attracted same-sex couples among the creative class. 29. Second, a 2009 survey of 559 individual members of same-sex married couples
living in Massachusetts in May 2009 found that 8% of those couples had moved to the state since the right to marriage equality was affirmed there (Gates, 2009). More than half (51%) of those couples who had recently moved to Massachusetts reported that their decision to move to Massachusetts was influenced by marriage equality or the states lesbian, gay, bisexual, and transgender (LGBT) rights climate. 30. These findings suggest that as other states allow same-sex couples to marry, Utah
will find itself increasingly disadvantaged in competing for the creative-class and other highly skilled members of the nations workforce. (v) 31. Net magnitude of cost The economic harm to the State and its economy discussed above are substantial.
First, the State and its subdivisions will lose approximately $1 million in lost tax revenue over three years, due to the inability of same-sex couples to marry. Second, the State will lose approximately $15.5 million in wedding-related business spending over three years. Third, the State may suffer further significant losses due to general productivity loss, higher costs for health care of uninsured partners, and creative class loss. C. Utahs Limits on the Right to Marry Impose Substantial Costs on a Significant Number of Same-Sex Couples And Their Families 32. The marriage exclusion deprives same-sex couples and their children of
significant economic benefits associated with marriage. Some of these benefits, such as the ability to file joint state tax returns or the right to inherit from an intestate spouse, are provided at
the state level. Other benefits come from the federal government, such as the ability to file a joint federal tax return and exemptions from federal estate taxes. 33. In this section, I address the costs imposed on two groups of same-sex couples:(1)
same-sex couples who wish to marry in Utah and have not married elsewhere (unmarried couples) and (2) same-sex couples who have married in another state (couples married in another state) and therefore receive at least some federal, but not state, rights and benefits of marriage. 34. Subsection (i) outlines the costs imposed by Utahs marriage law on both same-
sex unmarried couples and same-sex couples married in another state: (a) the loss of valuable employment-related benefits, such as health insurance coverage; (b) increased transaction costs; (c) reduced economic efficiency of the family; and (d) costs of workplace discrimination. 35. Subsection (ii) briefly outlines the federal benefits that unmarried same-sex
couples are deprived of by the state of Utah. (i) Utahs marriage restrictions impose substantial state-level costs on unmarried same-sex couples and same-sex couples married in another state. 36. The total cost to the significant number of unmarried same-sex couples and same-
sex couples married in another state is substantial and takes a variety of forms, including: (a) 37. Loss of employer-provided benefits
Many unmarried same-sex couples lack health insurance as a result of the
marriage exclusion. Recent studies show that people with same-sex unmarried partners are much more likely to be uninsured than are married people (Ash & Badgett, 2006; Heck et al; Ponce et al; Buchmueller and Carpenter, 2012). In the United States, the most common source of insurance is through ones own or ones spouses employment (DeNavas-Walt, et al., 2009, Fig 7). Because the price of insurance on the open market for individual coverage is more expensive than employees share of spousal coverage, many persons without employment-based insurance may be unable to afford it (see Badgett, 2010). While the Affordable Care Act reforms might
reduce the cost of individual health insurance on the insurance exchanges, those costs might still outweigh the tax penalty paid for violating the coverage mandate, leaving some individuals uninsured. Also, since Utah is not fully participating in Medicaid expansion as part of the Affordable Care Act, many low-income individuals in same-sex couples are likely to remain uncovered. (b) 38. Increased transaction costs
Because of the marriage exclusion, same-sex couples may face large transaction
costs to create legal protections through wills, durable powers of attorney, health care proxies, second parent adoptions, cohabitation agreements, and other legal documents. Same-sex couples must sometimes spend thousands of dollars in legal fees to create such documents (Bernard and Lieber, 2009). If couples were allowed to marry, many of these protections would be automatically conferred by state law through marriage. (c) 39. Reduced economic efficiency of the family
Economists and other scholars have suggested several ways that marriage
promotes interdependence and enhances economic efficiency for couples and, therefore, for society as a whole. Because they are not allowed to marry under Utah law, same-sex couples are deprived of this enhanced economic efficiency and security. 40. In general, marriage provides a legal framework for living an interdependent
economic life. Through marriage, couples can buy property together and other household goods knowing that each member of the couple has ownership rights. And if the worst should happen, that is, if one spouse dies or the relationship dissolves, then the ownership rights would be clear. Thus the contractual nature of marriage facilitates a more efficient use of time and money resources for families than is available to unmarried couples. More specifically, marriage can enhance a couples economic efficiencies in the following ways:
41.
Promoting Specialization of Labor: Nobel Prize-winning economist Gary Becker
has argued that the marriage contract allows for increasing household efficiency (Becker, 1991). Partners pool time and money, and then divide up their labor in ways that increase the familys productivity in producing goods and services for family members. Without the presumed longterm nature of the relationship that marriage implies, as well as the division of marital property and the possibility of alimony if a marriage ends, specialization by either party would not necessarily be efficient for individuals in the long-term. For instance, marriage gives couples the economic security to make decisions about education and labor force participation knowing that one spouse can provide the primary economic support if the other can contribute less cash income to the family. If the relationship ends, a spouse who has sacrificed some earning potential will be eligible for alimony and a share of marital property to compensate him or her for those financial losses. 42. Reducing Transaction Costs: Marriage also promotes economic efficiency
through reducing transaction costs for couples, removing the need to renegotiate the terms of the legal relationship as couples experience changed circumstances (Pollak, 1985). 43. Providing Social Insurance: Marriage also facilitates wealth and income pooling
across individuals and within families, which provides insurance against bad times, such as a disability or death or the loss of a job (Pollak, 1985). 44. Taking Advantage of Economies of Scale: By encouraging larger household sizes,
marriage helps families take advantage of economies of scale. In other words, doubling the inputs of time and other resources in some tasks results in more than double the output of familyrelated goods and services (Nelson, 1988). 45. Signaling Commitment: In addition, the willingness to marry is an important
signal of commitment to a relationship (Eskridge, 1996). Through the decision to marry, each partner signals greater effort to maintain the relationship, a greater likelihood that the
relationship will endure, and an agreement to make a fair settlement if, despite the good intentions of the parties, the relationship should end. The commitment to a long-term relationship and the rules for distribution of assets and income should the relationship end underlie the specialization, transaction costs, and social insurance functions of marriage. 46. Promoting The Provision Of Caring Labor: The long-term nature of the marital
commitment promotes reciprocity and altruism, as partners take care of one another and any children they might be raising together. The unpaid work done in families is essential for the survival of healthy human beings (Folbre, 1995). 47. According to these scholars of the family, the legal institution of marriage
promotes efficiency at the family level and therefore at the social level. Both individual couples and societies have an incentive to seek out and utilize this relatively efficient institution. 48. To the extent that same-sex couples in Utah are in positions that suggest a high
level of interdependence, those couples remain insecure relative to married couples because they cannot receive the full extent of public and private support that accompanies marriage. 49. The interdependence of members of same-sex couples in Utah is demonstrated by
the large disparities between the individual incomes of both members of a same-sex couple. In the average same-sex couple living in Utah in the 2009-2011 American Community Survey (ACS), the average difference in total individual incomes between the two partners was $31,747, which is somewhat lower than the average difference of $48,269 for married couples. However, the medians for the within-couple income difference were almost identical: $31,395 for samesex couples and $31,500 for different-sex couples. Both measures suggest a high degree of interdependence among same-sex couples--and in the case of the medians, an equal degree when compared to different-sex couples--since the disparities would be generated by interdependent or joint decision-making. Some of the interdependent decisions that might result in these disparities includes deciding together how many hours each partner will work, whether each partner
participates in the paid labor force, how much time each partner spends in child rearing, etc. However, same-sex couples are making these joint decisions without the protections, such as marital property, provided for by marriage. 50. Couples also care for each other when one partner is aging, sick or disabled. In
0.2% of same-sex couples in Utah, one or both partners are 65 or older (the figure for married different-sex couples is 17% and is statistically significantly different). In 11% of same-sex couples (and 16% of married couples, not statistically significantly different), at least one member of the couple has a disability. In these couples, members may be taking on the responsibility to provide for or care for a senior or disabled member. However, when they do so they are not afforded the support that marriage would provide under Utah law. (d) 51. Costs of workplace discrimination
Furthermore, individuals in same-sex couples are likely to bear additional
workplace costs as a result of the marriage exclusion, most notably from the potential loss of productivity as a result of being denied the same rights as other employees who are or could marry. The differential treatment of employees with same-sex partners when compared with married heterosexual employees is likely to be viewed as workplace discrimination by lesbian, gay, and bisexual (LGB) employees (Badgett, 2001; Raeburn, 2004). That perception and reality of discrimination may have harmful effects on worker job satisfaction and lead to absenteeism and health problems (see generally Badgett, Durso, Kastanis and Mallory, 2013). 52. On the other hand, the equal treatment of LGB people in the workplace tends to
increase the disclosure of sexual orientation by people in same-sex couples and single LGB people (Badgett, 2001; Badgett, 2009; Ramos, Goldberg, and Badgett, 2009; Driscoll, Kelley, and Fassinger, 1996; Griffith & Hebl, 2002; Ragins & Cornwell, 2008; Rostosky & Riggle, 2002). More openness of LGB employees leads to positive workplace outcomes for those individuals and their employers, such as greater job satisfaction, increased work commitment,
and lower turnover (see also Day & Schoenrade, 1997; Griffith & Hebl, 2002; Ellis & Riggle, 1995). 53. These studies suggest that the beneficial effects of laws and policies promoting
equality are likely to improve overall workplace productivity of individuals, which in turn would likely have a positive effect on individual promotion opportunities and individual wage growth. However, institutionalized conditions of inequality, such as state denial of the right to marry and private denial of employment benefits associated with marriage, will likely have the opposite effect by reducing commitment to working in Utah or to working for companies that have differential treatment of married and unmarried couples. (ii) Costs from loss of federal rights and benefits 54. Same-sex couples who have not married in another state but would marry if
allowed in Utah are not eligible for a wide range of federal rights and benefits. As set forth below, being denied these federal rights and benefits could impose substantial economic penalties on same-sex couples who would otherwise marry. These penalties include, among other things, (a) an increased federal tax burden; (b) decreased access to Social Security benefits; (c) an increased financial risk in the event one partner falls ill or dies; and (d) an increase in legal and other costs for couples that include a non-U.S. citizen. (a) Federal Taxes 55. Some same-sex couples will pay higher income taxes because they cannot marry. In particular, same-sex couples whose incomes are very different are most likely to benefit from filing joint federal income tax returns (see Badgett, 2010).
56.
Unmarried same-sex couples might also pay more in taxes than they would if
married if their employers cover domestic partners. The federal government taxes the employer contribution to a domestic partners benefits as if it were cash income to the employee whose partner is covered. However, the federal government does not tax the employer contribution to a spouses benefits, including for a same-sex spouse. A 2007 study shows that the average person receiving domestic partner benefits is taxed $1069 in additional federal income and payroll taxes (Badgett, 2007). 57. Inability to marry also has federal estate tax implications upon the death of a
partner. Transfers of assets from the estate of a deceased person to that persons spouse are taxfree, while transfers to a same-sex partner are taxed if the transfers exceed the current estate tax exclusion limit ($5.12 million in 2012). (b) Social Security Benefits 58. The Social Security system provides a variety of benefits to spouses and surviving
spouses of covered workers for retirement benefits, disability benefits, and survivor benefits. Same-sex couples are deprived of these benefits, which are designed to assist couples in old age or in the event of death or disability, because they cannot marry under Utahs law. Notably, they are deprived of the benefits even though individuals in same-sex couples must pay into the social security program at the same rates as individuals in married couples. 59. On retirement, a married social security recipient is entitled to the larger of either
his or her own retirement benefit or one-half of his or her covered spouses retirement benefit. In Utah, the average monthly spousal retirement benefit was $702 in December 2012, or $8,424 per
year. Since same-sex couples are not allowed to marry, they are not able to receive this spousal benefit at all. 60. On the death of a retired spouse, the surviving spouse receives the deceased
spouses benefit if it is greater than the survivors own social security retirement benefit. The Census Bureau data show that the average difference between the two benefits is $5,700 a year for same-sex couples in the U.S. (Goldberg, 2008). If the higher earning partner were to die, the surviving partner would lose the higher earners entire social security payment and continue to receive their lower payment. By contrast, if same-sex couples could marry, the lower earning surviving spouse would receive the higher earners benefit, which would be on average $5,700 over his or her own benefit. Thus, denying same-sex couples the right to marry could cost approximately half of the surviving members of such couples on average $5,700 a year in lost social security payments. Social Security also provides a survivor benefit to widows and widowers whose spouses have paid into the system but have not yet retired. According to the Social Security Administration, it provides a surviving spouse not only a $255 lump sum benefit on the death of a covered worker, but survivor benefits that are the equivalent of a $433,000 life insurance policy for a young family (Rosenblatt, 2008). In Utah, the average monthly survivor benefit was $1,248 in December 2012, or $14,982 per year. Because they are not allowed to marry, members of same-sex couples are not allowed this survivor benefit at all. 61. If a covered worker becomes disabled, his or her spouse who is 62 or over
receives a benefit of one-half the disabled recipients Social Security benefit. In December 2012, the average spousal disability benefit in Utah was $305 per month, or $3,663 per year. Because
they are not allowed to marry, members of same-sex couples are not allowed this spousal disability benefit at all. (c) Aging Couples 62. An older person in a same-sex couple is at a greater risk of losing his or her home
if a partner dies because the survivor faces financial challenges that married surviving spouses do not face. As noted earlier, many surviving same-sex partners will lose or receive reduced social security benefits and may have to pay estate taxes on transferred assets. Married individuals do not face these additional financial burdens under federal law on the death of a spouse. 63. Members of same-sex couples in Utah are also at risk of losing their home when a
partner enters a nursing home because the State does not allow them to marry and the federal government would not recognize their relationship. Because long-term care costs are so high, Medicaid steps in to pay those costs when a nursing home residents savings run out. However, special Medicaid regulations protect a married resident from having to spend down assets and impoverishing and/or displacing their spouse who is not in the nursing home. First, a stillhealthy spouse of such a nursing home resident has a special claim to some of the nursing-home residents income and assets. Second, these protections extend to a married couples home. The government will eventually seize the home and force a sale to recover what it spent on nursing home billsbut only after the other, surviving spouse dies as well. 64. Because they cannot marry, same-sex couples are not provided these protections
in paragraph 63. The results can be financially catastrophic. Same-sex couples are not entitled to some of the nursing-home residents income or assets, and their home is not protected while the partner is still alive. Medicaid regulations also presume that joint bank accounts of same-sex
couples are owned by the nursing home resident, so the government will require that the money in such accounts be spent down too. If the deed to the house is in the nursing home residents name and she has no chance of coming home, the home must be sold at fair market value. It does not matter how long the couple has been together, shared the home, and shared responsibility for the mortgage payments. (d) Couples That Include One Non-Citizen 65. In some same-sex couples in Utah, only one person is a U.S. citizen. If married,
the partner who is not a citizen would become eligible for permanent residence status, if he or she does not already have such status, and would not be subject to numerical limitations on immigration under federal law. Furthermore, spouses are eligible for citizenship after three years, compared with five years for other immigrants. 66. The inability to marry and receive the favored immigration status causes
economic harm in several ways. Non-citizen partners without lawful permanent residence status may need to return to their home countries for extended periods of time, requiring costly travel expenses. These extended visits may hinder the occupational advancement of either or both individuals, reducing earnings over the course of a lifetime. 67. Couples may decide to relocate to countries that will legally recognize their status
for immigration purposes. Relocation can be costly in direct moving costs as well as in loss of earnings. 68. Finally, those mixed-citizenship couples may require hiring legal counsel to
understand and enhance their legal options.
D. Allowing Same-Sex Couples to Marry Will Have No Adverse Impacts On Heterosexual Marriages 69. Based on my research and experience, there is no evidence to conclude that
heterosexual marriages would be discouraged or made unstable if same-sex couples were allowed to marry. For example, data from the Netherlands, the first country to allow same-sex couples to marry, suggest that heterosexual marriage trends do not change when same-sex couples are permitted to marry (Badgett, 2009). More recent data in the United States also shows that patterns of marriage, divorce, and other indicators are not affected when same-sex couples can marry (Langbein and Yost, 2009; Eggleston, 2011; Dinno and Whitney, 2013). 70. Overall, an analysis of demographic trends, population-based surveys, and
qualitative interviews shows no evidence that granting the right to marry to same-sex couples will have any effect on heterosexual couples willingness to marry, their probability of divorce, or the non-marital birth rate. Citations and graphs for each of these measures can be found in Badgett (2009). (i) 71. Demographic trends within countries
The trends in marriage-related behavior (marriage, divorce, and non-marital
births) in the Netherlands do not correspond to the adoption of policies allowing marriage for same-sex couples in any way that would be consistent with same-sex marriage causing a decline in heterosexual marriage. The demographic trends in heterosexual marriage-related behavior seen in many European countries were underway long before the Netherlands gave same-sex couples the right to registered partnerships and later to marry. After 2001, the long-term trends continued. 72. Patterns of Dutch marriage rates show that the legal recognition of same-sex
relationships did not cause a decline in heterosexual marriage rates. The marriage rates in the Netherlands shows a long-term declining trend since the 1960s that continued unchanged after giving same-sex couples registered partnership rights in 1998 and marriage rights in 2001. Year-
to-year fluctuations occurred around that long-term trend both before and after 2001. 73. Divorce rates also show little change after same-sex couples began marrying,
providing no evidence of harm to heterosexual marriage. One common divorce measure is the crude divorce rate, or the number of divorces per 1,000 residents. That divorce measure began rising in the 1960s in the Netherlands. However, divorce rates have not changed much at all in the Netherlands in the last two decades, with no increase in divorce rates in the time period when same-sex couples were granted registration or marriage rights. 74. Another commonly cited statistic is the proportion of babies born to unmarried
mothers, or the non-marital birth rate. The trend in the Netherlands with respect to the nonmarital birth rates was already in place long before the Netherlands gave same-sex couples partnership or marriage rights. The Dutch have traditionally been much less likely than some other Northern European countries to have babies before marriage, with fewer than one in ten births occurring to unmarried parents before 1988. However, the Dutch non-marital birth rate has been rising steadily since the 1980s, well before the Netherlands implemented registered partnerships in 1998 and gave same-sex couples the right to marry in 2001. (ii) 75. Comparisons between countries with and without rights for same-sex couples
The same rise in the non-marital birth rate in the Netherlands, from 12% in 1990
to 29% in 2002, also occurred over the same time period in other European countries that initially had low non-marital birth rates but did not recognize either marriage or registered partnership rights for same-sex couples. In Ireland, the rate increased from 17% in 1990 to 31 % in 2002; in Luxemburg from 12% to 23%; in Hungary from 14% to 32%; in Lithuania from 7% to 28%; in Slovakia from 9% to 22% (Badgett, 2009). This common demographic trend supports the idea that giving marriage rights to same-sex couples does not cause any increase in non-marital births.
(iii) 76.
Comparisons of marriage attitudes across sexual orientation
The available survey and qualitative evidence suggests that lesbians and gay men
hold attitudes toward marriage that are similar to heterosexual peoples attitudes. Same-sex couples marry for similar reasons as heterosexuals, mainly to express commitment to one another, to demonstrate that commitment to families and communities, or to establish a legal bond that helps to solve the practical issues related to living a joint economic life together (Badgett, 2009; Eskridge & Spedale, 2007; Boele-Woelki, et al., 2006). Similarly, lesbians and gay men tend to share ideas about the meaning of marriage with their heterosexual peers, as my interviews and survey data show in the Netherlands and the United States. Mutual respect and understanding, as well as a willingness to cooperate and share family labor, define the new roles for married men and women, as seen in survey data presented in Badgett, 2009 and BoeleWoelki, et al., 2006. 77. Heterosexual reactions to same-sex couples marrying in the Netherlands also
reveal how easily same-sex couples have been integrated into marriage as an institution (Badgett, 2009). Same-sex couples report that heterosexual families and peers recognize them as marriageable and married. Heterosexual friends and family members encourage gay and lesbian couples to marry and offer unsolicited words and deeds that acknowledge the importance of a gay couples wedding. Heterosexuals mark the anniversaries of gay couples and remind them to use terms like husband and wife.
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Case 2:13-cv-00217-RJS Document 85-2 Filed 11/22/13 Page 27 of 47 M. V. LEE BADGETT

CAMPUS ADDRESS Center for Public Policy & Administration University of Massachusetts Amherst, MA 01003 Email: lbadgett@pubpol.umass.edu (v) 413-545-3162 (f) 413-545-1108 CURRENT POSITION: Director Professor Research Director EDUCATION: Univ. of California, Berkeley University of Chicago
Center for Public Policy and Administration, Univ. of Massachusetts Amherst Dept. of Economics, Univ. of Massachusetts Amherst Williams Institute, UCLA School of Law DEGREE Ph.D. A.B. DATE 1990 1982 FIELD Economics Economics
Dissertation title: "Racial Differences in Unemployment Rates and Employment Opportunities" PREVIOUS POSITIONS: Assistant & Associate Professor, Dept. of Economics, University of Massachusetts-Amherst (1997-2008) Adjunct Professor, Whittier Law School (Summer 2011) Visiting Professor, UCLA School of Law (2005-2007; summer 2008) Visiting researcher, Amsterdam School for Social Science Research, Univ. of Amsterdam (2003-4) Co-founder & Research Director, Inst. for Gay and Lesbian Strategic Studies (1994-2006, merged with Williams Inst. 2006) Assistant Professor, School of Public Affairs, University of Maryland, College Park (1990-97) Visiting Assistant Professor, Womens Studies and Lesbian and Gay Studies, Yale University (1995-96) Research Analyst, National Commission for Employment Policy, U.S. Dept. of Labor (Summer, 1994) RECENT COURSES TAUGHT: Economics: Microeconomics (UMass) Microeconomics and Public Policy (UMass) Political Economy of Sexuality (UMass) Labor Economics--undergraduate and Ph.D. level (UMass) Feminist Economics (co-taught as visiting professor at University of Minnesota) Policy: Policy Analysis (UMass), Capstone course (UMass) Social Inequality and Social Justice: Problems and Solutions (UMass) Social Science and Public Policy on LGBT Issues (Whittier Law School Barcelona program; Umass Online) CURRENT RESEARCH TOPICS: Sexual orientation and gender identity discrimination in labor markets and impact of public policy Poverty in LGBT community Family structures and family policy, esp. same-sex partner recognition in US and other countries Domestic partner health care and pension benefits BOOKS: When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, New York University Press, 2009. Distinguished Book Award, American Psychological Association, Division 44, 2010. Sexual Orientation Discrimination: An International Perspective, co-edited by M. V. Lee Badgett and Jeff Frank, Routledge, 2007. Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men, University of Chicago Press, 2001. BOOK MANUSCRIPT: Using to Research to Change the World, full manuscript under review. JOURNAL ARTICLES: Same-Sex Legal Marriage and Psychological Well-Being: Findings From the California Health Interview Survey, Richard G. Wight, Allen J. LeBlanc, and M. V. Lee Badgett, American Journal of Public Health, February 2013, Vol. 103, No. 2, 339M. V. Lee Badgett--page 1

346. Separated and Not Equal: Binational Same-Sex Couples, Signs, Vol. 36, No. 4, Summer 2011, 793-798. Social Inclusion and the Value of Marriage Equality in Massachusetts and the Netherlands, Journal of Social Issues, Vol. 67, No. 2, 2011, pp. 316-334. Are We All Decisionists Now? Response to Libby Adler, online forum of Harvard Civil Rights and Civil Liberties Review, March 2011. The Economic Value of Marriage for Same-sex Couples, Drake Law Review, Vol. 58, No. 4, 2010, pp 1081-1116. Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008, M.V. Lee Badgett, Brad Sears, Holning Lau, and Deborah Ho. Chicago-Kent Law Review, Vol. 84, No. 2, 2009. The Double-Edged Sword in Gay Economic Life: Marriage and the Market. Washington and Lee Journal of Civil Rights and Social Justice, Vol. 15, No. 1, Fall 2008, pp. 109-128. Registered Domestic Partnerships Among Gay Men and Lesbians: The Role of Economic Factors, M. V. Lee Badgett, Gary J. Gates, and Natalya Maisel, Review of Economics of the Household, December 2008. The Impact on Marylands Budget of Allowing Same-Sex Couples to Marry, M. V. Lee Badgett, Amanda K. Baumle, Shawn Kravich, Adam P. Romero, R. Bradley Sears, University of Maryland Law Journal of Race, Religion, Gender and Class, Vol 7, No. 2, 2007, pp. 295-339. Supporting Families, Saving Funds: An Economic Analysis of Equality for Same-sex Couples in New Jersey, Rutgers Journal of Law & Public Policy, by M. V. Lee Badgett, R. Bradley Sears, and Deborah Ho, Vol. 4, No. 1, 2006. Separate and Unequal: The Effect of Unequal Access to Employment-Based Health Insurance on Same-sex and Unmarried Different-Sex Couples, Michael Ash and M. V. Lee Badgett, Contemporary Economic Policy, October 2006, Vol. 24, no. 4, pp 582-599. Predicting Partnership Rights: Applying the European Experience to the United States, Yale Journal of Law and Feminism, Vol. 17, No. 1, Spring 2005, 71-88. Putting a Price on Equality? The Impact of Allowing Same-Sex Couples to Marry on Californias Budget, coauthored with R. Bradley Sears, Stanford Law & Policy Review, Vol. 16, No. 1, 2005, pp. 197-232. Winner of 2005 Dukeminier Award for Best Sexual Orientation Law Review Articles, reprinted in The Dukeminier Award Journal, Vol. 5, 2006. Now That We Do: Same-Sex couples and Marriage in Massachusetts, with Randy Albelda and Michael Ash, Massachusetts Benchmarks, Vol. 7, Issue 2, 2005, 17-24. Asking the Right Questions: Making the Case for Sexual Orientation Data, 2004 Proceedings of the American Statistical Association, Statistical Computing Section [CD-ROM], Alexandria, VA: American Statistical Association. Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriage? Sexuality Research and Social Policy: Journal of NSRC, Vol. 1, No. 3, Sept. 2004, pp. 1-10. "Job Gendering: Occupational Choice and the Marriage Market," M. V. Lee Badgett and Nancy Folbre, Industrial Relations, April, 42(2), 2003, 270-298. "Wedding Bell Blues: The Income Tax Consequences of Legalizing Same-Sex Marriage," James Alm, M. V. Lee Badgett, and Leslie A. Whittington, National Tax Journal, Vol. LIII, No. 2, June 2000, pp. 201-214. "Assigning Care," co-authored with Nancy Folbre, International Labour Review, Vol. 138, No. 3, 1999, pp. 311-326.
M. V. Lee Badgett--page 2

"Introduction: Towards Lesbian, Gay, and Bisexual Perspectives in Economics: Why and How They May Make a Difference," Prue Hyman and M. V. Lee Badgett, introduction to special section of Feminist Economics, co-edited by Badgett and Hyman, Vol. 4, No. 2, Summer 1998, pp. 49-54. "Readings Related to Lesbian and Gay Economics: An Annotated Bibliography," Feminist Economics, Vol. 4, No. 2, Summer 1998, pp. 111-116. A Queer Marketplace: Books on Lesbian and Gay Consumers, Workers, and Investors, (review essay) Feminist Studies, Vol. 23, No. 3, Fall 1997, pp. 607-632. "Employment and Sexual Orientation: Disclosure and Discrimination in the Workplace," Journal of Gay and Lesbian Social Services, Vol. 4, No. 4, 1996, pp. 29-52. Simultaneously published as Sexual Identity on the Job: Issues and Services, Alan L. Ellis and Ellen D.B. Riggle, editors, Harrington Park Press, 1996. Also published in Psychological Perspectives on Lesbian, Gay, and Bisexual Experiences, 2nd edition, ed. Linda D. Garnets and Douglas C. Kimmel, Columbia University Press, 2003. "The Wage Effects of Sexual Orientation Discrimination," Industrial and Labor Relations Review, Vol. 48, No. 4, July, 1995, pp. 726-739. Reprinted in Women Transforming Politics: An Alternative Reader, ed. by Cathy J. Cohen, Kathleen B. Jones, and Joan C. Tronto, New York University Press, 1997. "Gender, Sexuality and Sexual Orientation: All in the Feminist Family?" Feminist Economics, Vol. 1, No. 1, 1995. Reprinted in Gender and Political Economy: Incorporating Diversity into Theory and Policy, ed. by Ellen Mutari, Heather Boushey, and William Fraher IV, M.E. Sharpe, Armonk, NY, 1997. "Affirmative Action in a Changing Legal and Economic Environment," Industrial Relations, Vol. 34, No. 4, 1995. "Rising Black Unemployment: Changes in Job Stability or Employability?" Review of Black Political Economy, Vol. 22, No. 3, Winter 1994, pp. 55-75. "The Economics of Sexual Orientation: Establishing a Research Agenda," M. V. Lee Badgett and Rhonda M. Williams, Feminist Studies, Vol. 18, No.3, 1992. BOOK CHAPTERS: Patterns of Relationship Recognition by Same-Sex Couples in the United States, by M. V. Lee Badgett and Jody Herman, in International Handbook on the Demography of Sexuality, ed. by Amanda Baumle, Springer, 2013. Marriage by the Numbers, in Here Come the Brides: Reflections on Lesbian Love and Marriage, ed. by Audrey Bilger & Michele Kort, Seal Press, Berkeley, 2012, pp. 170-176. Bringing All Families to Work Today: Equality for Gay and Lesbian Workers and Their Families, in The Changing Realities of Work and Family: A Multidisciplinary Approach, ed. By Amy Marcus-Newhall, Diane Halpern, and Sherylle Tan, Wiley-Blackwell, 2008. The Global Gay Gap: Institutions, Markets, and Social Change, with Jefferson Frank, Sexual Orientation Discrimination: An International Perspective, edited by Badgett and Frank, Routledge, 2007. Discrimination Based on Sexual Orientation: A Review of the Economics Literature and Beyond, in The Handbook of the Economics of Discrimination, ed. By William M. Rodgers III, Edward Elgar, 2006. Also appearing in Sexual Orientation Discrimination: An International Perspective, edited by Badgett and Frank. "Is Affirmative Action Working for Women?" (co-authored with Jeannette Lim) in Mary C. King (ed.) Squaring Up: Policy Strategies to Raise Women's Incomes in the United States. Ann Arbor, MI: University of Michigan Press, 2001. Lesbian and Gay Think Tanks: Thinking for Success, Identity/Space/Power: Lesbian, Gay, Bisexual, and Transgender Politics, edited by Mark Blasius, Princeton University Press, 2000. The Impact of Affirmative Action on Public-Sector Employment in California, 1970-1990, in Paul Ong, editor, Impacts of Affirmative Action: Policies & Consequences in California, AltaMira Press, 1999; and in The Impact of Affirmative Action on

Public-Sector Employment and Contracting in California, A Technical Assistance Program Report of the California Policy Seminar, University of California, 1997. "Where the Jobs Went in the 1990-91 Downturn: Varying (Mis)Fortunes or Homogeneous Distress?" Civil Rights and Race Relations in the Post Reagan-Bush Era, ed. Samuel L. Myers, Praeger, Westport, CT, 1997, pp 99-147. The Economic Well-Being of Lesbian and Gay Adults Families, in Lesbian, Gay and Bisexual Identities in the Families: Psychological Perspectives, ed. by Charlotte J. Patterson and Anthony R. DAugelli, Oxford University Press, 1997. "Choices and Chances: Is Coming Out at Work a Rational Choice?" in Queer Studies: A Multicultural Anthology, ed. by Mickey Eliason and Brett Beemyn, New York University Press, 1996. "Beyond Biased Samples: Challenging the Myths on the Economic Status of Lesbians and Gay Men," in Homo Economics: Capitalism, Community, and Lesbian and Gay Life, ed. by Amy Gluckman and Betsy Reed, Routledge Press, 1997. "Occupational Strategies of Lesbians and Gay Men," M. V. Lee Badgett and Mary C. King, in Homo Economics: Capitalism, Community, and Lesbian and Gay Life, ed. by Amy Gluckman and Betsy Reed, Routledge Press, 1997. "Thinking Homo/Economically," in Walter L. Williams and James Sears, eds., Combating Homophobia and Heterosexism, forthcoming, Columbia University Press. (Reprinted in A Queer World: The CLAGS Reader, ed. by Martin Duberman, New York University Press, 1997.) "Evidence of the Effectiveness of Equal Employment Opportunity Policies: A Review," M. V. Lee Badgett and Heidi I. Hartmann, in Economic Perspectives on Affirmative Action, ed. by Margaret C. Simms, Joint Center for Political and Economic Studies, 1995. "The Changing Contours of Discrimination: Race, Gender, and Structural Economic Change," M. V. Lee Badgett and Rhonda M. Williams, in Understanding American Economic Decline, David Adler and Michael Bernstein, eds., Cambridge University Press, Cambridge, 1994. POLICY REPORTS: M. V. Lee Badgett and Jody L. Herman, Sexual Orientation and Gender Identity Diversity in Entertainment: Experiences and Perspectives of SAG-AFTRA Members, Williams Institute and SAG-AFTRA, September 2013. M. V. Lee Badgett, Laura Durso, and Alyssa Schneebaum, New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, Williams Institute, May 2013. M. V. Lee Badgett, Laura Durso, Angel Kastanis, and Christy Mallory, The Business Impact of LGBT-Supportive Policies, Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, Estimating the Economic Boost of Marriage Equality in Delaware, Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, Estimating the Economic Boost of Marriage Equality in Rhode Island, Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, Estimating the Economic Boost of Marriage Equality in Minnesota, Williams Institute, May 2013. Angel Kastanis and M. V. Lee Badgett, Estimating the Economic Boost of Marriage Equality in Illinois, Williams Institute, March 2013, http://williamsinstitute.law.ucla.edu/wp-content/uploads/IL-Econ-Impact-Mar-2013.pdf. Administrative Impact of Adding Sexual Orientation and Gender Identity to Texass Employment Non-Discrimination Law, Christy Mallory and Lee Badgett, December 2012.

The Economy Impact of Extending Marriage to Same-sex Couples in Australia, M. V. Lee Badgett and Jennifer Smith, February 2012, Williams Institute. Impact of Extending Sexual Orientation and Gender Identity Nondiscrimination Requirements to Federal Contractors, Williams Institute, February 2012. The Economic Impact of Extending Marriage to Same-Sex Couples in Washington, Angeliki Kastanis, M. V. Lee Badgett, and Jody L. Herman, January 2012. Estimating the Economic Boost of Marriage Equality in Iowa: Sales Tax, Angeliki Kastanis, M. V. Lee Badgett, and Jody L. Herman, December 2011. Patterns of Relationship Recognition by Same-Sex Couples in the United States, M. V. Lee Badgett and Jody L. Herman, Williams Institute, November 2011. "Spending on Weddings of Same-Sex Couples in the United States," By Craig J. Konnoth, M.V. Lee Badgett, Brad Sears July 2011, Williams Institute. The Impact of Creating Civil Unions for Same-Sex Couples on Delaware's Budget, By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, March 2011 Williams Institute. "The Fiscal Impact of Creating Civil Unions on Colorados Budget," By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, February 2011, Williams Institute. "The Impact on Rhode Islands Budget of Allowing Same-Sex Couples to Marry," By Jody L. Herman, Craig J. Konnoth, M.V. Lee Badgett, February 2011, Williams Institute. "Employment Discrimination against Lesbian, Gay, Bisexual, and Transgender People in Oklahoma," By Christy Mallory, Jody L. Herman, M.V. Lee Badgett, January 2011, Williams Institute. "Employment Discrimination against LGBT Utahns," By Clifford Rosky, Christy Mallory, Jenni Smith, M.V. Lee Badgett, January 2011, WIlliams Institute. "Utah Census Snapshot: New Study on Same-Sex Couples in Utah," By Jody L. Herman, Christy Mallory, M.V. Lee Badgett, Gary J. Gates, November 2010, Williams Institute. "The Potential Impact of HB444 on the State of Hawai'i," by Naomi Goldberg, R. Bradley Sears, and M.V. Lee Badgett, June 2010, Williams Institute. "The Impact of Expanding FMLA Rights to Care for Children of Same-Sex Partners," M. V. Lee Badgett, June 2010, Williams Institute. "The Impact of Employment Nondiscrimination Legislation in South Dakota," Naomi Goldberg, M. V. Lee Badgett, and Chris Ramos, January 2010, Williams Institute. "The Impact of Extending Marriage to Same-Sex Couples on the New Jersey Budget," by Brad Sears, Christopher Ramos, and M.V. Lee Badgett, December 2009, Williams Institute. Best Practices for Asking Questions about Sexual Orientation on Surveys, editor and co-author, November 2009, Williams Institute. The Business Boost from Marriage Equality: Evidence from the Health and Marriage Equality in Massachusetts Survey, by Naomi Goldberg, Michael Steinberger, and M.V. Lee Badgett, May 2009, Williams Institute. The Effects of Marriage Equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex couples,by Christopher Ramos, Naomi G. Goldberg, and M.V. Lee Badgett, May 2009, Williams Institute. The Impact on Maines Budget of Allowing Same-Sex Couples to Marry, by Christopher Ramos, M. V. Lee Badgett, Michael D. Steinberger, and Brad Sears, April 2009, Williams Institute. M. V. Lee Badgett--page 5

The Economic Impact of Extending Marriage to Same-Sex Couples in the District of Columbia, By Christopher Ramos, M. V. Lee Badgett, and Brad Sears, April 2009, Williams Institute. Fact Sheet: Tax Implications for Same-Sex Couples, by Naomi Goldberg and M. V. Lee Badgett, April 2009, Williams Institute. The Economic Impact of Extending Marriage to Same-sex Couples in Vermont, By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, March 2009, Williams Institute. Poverty in the Lesbian, Gay, and Bisexual Community, by Randy Albelda, M.V. Lee Badgett, Gary Gates, and Alyssa Schneebaum, March 2009, Williams Institute. Florida Adoption Ban/ Cost Estimate, by Naomi Goldberg and M. V. Lee Badgett,February 2009, Williams Institute. Kentucky Foster Care/Adoption Ban Cost Estimate, By Naomi Goldberg and M. V. Lee Badgett, February 2009, Williams Institute. The Economic Impact of Extending Marriage to Same-sex Couples in Maine, By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, February 2009, Williams Institute. Evidence of Employment Discrimination on the Basis of Sexual Orientation and Gender Identity: Complaints Filed with State Enforcement Agencies 1999-2007, By M. V. Lee Badgett, Christopher Ramos, and Brad Sears, November 2008, Williams Institute. The Fiscal Impact of Extending Federal Benefits to Same-Sex Domestic Partners, Naomi G. Goldberg, Christopher Ramos, and M.V. Lee Badgett, September 2008. Marriage, Registration and Dissolution by Same-sex Couples in the U.S., Gary J. Gates, M.V. Lee Badgett, and Deborah Ho, Williams Institute, July 2008. The Impact of Extending Marriage to Non-Resident Same-Sex Couples on the Massachusetts Budget, By M. V. Lee Badgett and R. Bradley Sears, Williams Institute memo to Massachusetts Secretary of Housing and Economic Development, June 2008. The Impact of Extending Marriage to Same-Sex Couples on the California Budget, Brad Sears and M.V. Lee Badgett, Williams Institute, June 2008. The Impact on Iowa's Budget of Allowing Same-Sex Couples to Marry, M.V. Lee Badgett, Amanda K. Baumle, Adam P. Romero and Brad Sears, Williams Institute, April 2008. The Impact on Oregon's Budget of Introducing Same-Sex Domestic Partnerships, By M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, and Holning Lau, Williams Institute, February 2008. Implications of HB 9 for Businesses in New Mexico, M.V. Lee Badgett, Williams Institute, January 2008. Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits, M.V. Lee Badgett, Center for American Progress and Williams Institute, December 2007. The Impact on Maryland's Budget of Allowing Same-Sex Couples to Marry, M.V. Lee Badgett, Amanda Baumle, Shawn Kravich, Adam P. Romero, and R. Bradley Sears, Williams Institute, November 2007. Amici curiae brief, in re Marriage Cases, Supreme Court of California, September 2007, M. V. Lee Badgett and Gary J. Gates. Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination, by Lee Badgett, Holning Lau, Brad Sears, and Deborah Ho, Williams Institute, UCLA, June 2007. Census Snapshot series: 50 state reports; Williams Institute, UCLA, with various co-authors, 2007.

Methodological Details for Census Snapshot, August 2007, Danielle MacCartney, M. V. Lee Badgett, and Gary Gates. Adoption and Foster Care by Gay and Lesbian Parents in the United States, Williams Institute and Urban Institute, March 2007, Gary Gates, Lee Badgett, Jennifer Macomber, and Kate Chambers. The Financial Impact of Domestic Partner Benefits in New Hampshire, Williams Institute, December 2006. Economic Benefits from Same-Sex Weddings in New Jersey, Williams Institute, December 2006. Frequently Asked Questions about Providing Domestic Partner Benefits, M. V. Lee Badgett and Michael A. Ash, Williams Institute, October 2006. The Impact of the Colorado Domestic Partnership Act on Colorado's State Budget, M.V. Lee Badgett, R. Bradley Sears, Roger Lee, and Danielle MacCartney, Williams Institute. October 2006 The Effect of Marriage Equality and Domestic Partnership on Business and the Economy, M.V. Lee Badgett and Gary J. Gates, Williams Institute, October 2006. The Impact on Washingtons Budget of Allowing Same-Sex Couples to Marry, M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, and Holning Lau, IGLSS and Williams Institute, 2006. The Impact on New Mexicos Budget of Allowing Same-Sex Couples to Marry, M.V. Lee Badgett, R. Bradley Sears, Steven K. Homer, Patrice Curtis, and Elizabeth Kukura, IGLSS and Williams Institute, 2006. Positive Effects on State of Alaska from Domestic Partnership Benefits, Williams Institute, 2006. The Cost to Ocean County of Providing Pension Benefits to Employees Domestic Partners, Williams Institute, 2006. The Impact on New Hampshires Budget of Allowing Same-Sex Couples to Marry, R. Bradley Sears, M. V. Lee Badgett, and Elizabeth Kukura, IGLSS and Williams Institute, 2005. Counting on Couples: Fiscal Savings from Allowing Same-Sex Couples in Connecticut to Marry, M.V. Lee Badgett, R. Bradley Sears, Patrice Curtis, and Elizabeth Kukura, IGLSS and Williams Project on Sexual Orientation and the Law, 2005. Will Providing Marriage Rights to Same-sex Couples Undermine Heterosexual Marriage? Evidence from Scandinavia and the Netherlands, Discussion paper, Council on Contemporary Families and the Institute for Gay and Lesbian Strategic Studies, July 2004. The Business Cost Impact of Allowing Same-sex Couples to Marry, co-authored with Gary Gates. Human Rights Campaign and Institute for Gay and Lesbian Strategic Studies, 2004. Same-sex Couples and Their Children in Massachusetts: A View from Census 2000, co-authored with Michael Ash, Nancy Folbre, Lisa Saunders, and Randy Albelda, Angles, Institute for Gay and Lesbian Strategic Studies, Amherst, MA, February 2004. Sears, R. Bradley, and M. V. Lee Badgett. The Impact on Californias Budget of Allowing Same-Sex Couples to Marry, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2004. Sears, R. Bradley, and M. V. Lee Badgett. Same-sex Couples and Same-sex Couples Raising Children in California, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2004. The Bottom Line on Family Equality: The Impact of AB205 on California Businesses, M. V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project, August 2003. Supporting Families, Saving Funds: A Fiscal Analysis of New Jerseys Domestic Partnership Act, M.V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, December 2003. Equal Rights, Fiscal Responsibilities: The Impact of AB205 on Californias Budget, M.V. Lee Badgett and R. Bradley Sears, Institute for Gay and Lesbian Strategic Studies and Williams Project of UCLA Law School, May 2003.

Left Out of the Count: Missing Same-sex Couples in Census 2000, M. V. Lee Badgett and Marc A. Rogers, Institute for Gay and Lesbian Strategic Studies, Amherst, MA, 2003. "Calculating Costs with Credibility: Health Care Benefits for Domestic Partners," Angles, Vol. 5, Issue 1, 2000. Income Inflation: The Myth of Affluence Among Gay, Lesbian, and Bisexual Americans, Joint publication of NGLTF Policy Institute and Institute for Gay and Lesbian Strategic Studies, 1998. Reprinted in The Gay & Lesbian Review, Spring 2000. "The Fiscal Impact on the State of Vermont of Allowing Same-Sex Couples to Marry," IGLSS Technical Report 98-1, Oct. 1998. Creating Communities: Giving and Volunteering by Gay, Lesbian, Bisexual, and Transgender People, Working Group on Funding Lesbian and Gay Issues, Institute for Gay and Lesbian Strategic Studies, February 1998. (Co-authored with Nancy Cunningham) Vulnerability in the Workplace: Evidence of Anti-Gay Discrimination, Angles: The Policy Journal of the Institute for Gay and Lesbian Strategic Studies, Vol. 2, No. 1, September 1997. For Richer, For Poorer: The Cost of Nonrecognition of Same Gender Marriages, M. V. Lee Badgett and Josh A. Goldfoot, Angles: The Policy Journal of the Institute for Gay and Lesbian Strategic Studies, Vol. 1, No. 2, May 1996. "Pervasive Patterns of Discrimination Against Lesbians and Gay Men: Evidence from Surveys Across the United States," Lee Badgett, Colleen Donnelly, and Jennifer Kibbe, National Gay and Lesbian Task Force Policy Institute, 1992. "The Impact of the Construction of Luz SEGS VIII on California and the Project Area," William T. Dickens, Lee Badgett, and Carlos Davidson, February 1989. OP-EDS AND OTHER PUBLICATIONS: The Economic Benefits of Gay Marriage, March 29, 2013, PBS News Hour Blog, The Business Desk, http://www.pbs.org/newshour/businessdesk/2013/03/the-economic-benefits-of-gay-m.html Review of Counted Out: Same-Sex Relations and Americans Definitions of Family, in Gender & Society, August 2012, Vol 26, No. 4, 674-676. Gay Marriage Good for Family and Economy, The Drum Opinion, ABC Online (Australian Broadcasting Corp.), March 6, 2012. What Obama Should Do About Workplace Discrimination, New York Times, Feb. 6, 2012. High Costs of Discrimination, Worcester Telegram, M. V. Lee Badgett and Jody Herman, May 11, 2011. Featured guest column, The Economist debate on gay marriage, January 6, 2011, http://www.economist.com/debate/days/view/638. Summer of Love and Commitment, The Huffington Post, Sept. 3, 2008. Sexual Orientation, Social and Economic Consequences, in International Encyclopedia of the Social Sciences, 2nd Edition, ed. William A. Darity, Jr., Macmillan Reference USA, 2008. The Wedding Economy, The New York Times, January 7, 2007. The Closet Doors Open: Whats Behind Hartfords Surge in Gay Population? The Hartford Courant, Gary J. Gates and M. V. Lee Badgett, November 5, 2006. The Future of Same-Sex Marriage, Social Work Today, November 2006. The Gay Health Insurance Gap, www.alternet.org, October 26, 2006. Whats Good for Same-Sex Couples is Good for Colorado, The Daily Camera, Boulder, CO, October 28, 2006.

Book review of Inheritance Law and the Evolving Family. By Ralph Brashear. Feminist Economics, vol. 12, no. 1-2, 2006. Equality Doesnt Harm Family Values, with Joop Garssen, National Post (Canada), August 11, 2004. Prenuptial Jitters: Did Gay Marriage Destroy Heterosexual Marriage in Scandinavia? Slate Magazine, May 20, 2004, http://slate.msn.com/id/2100884/. Brad Sears and Lee Badgett, Tourism and Same-sex Marriage, San Diego Union-Tribune, June 2, 2004. http://www.signonsandiego.com/uniontrib/20040527/news_lz1e27sears.html Equality Is Not Expensive, Connecticut Law Tribune, April 19, 2004. Domestic Partner Bill Wont Be Burden to Business, Orange County Register, April 18, 2004, with Brad Sears. Economics and Boycotts, entries for Encyclopedia of Gay, Lesbian, Bisexual, and Transgender History, ed. By Marc Stein, Scribners, forthcoming Dec 2003. Recognizing California Couples: Domestic-Partner Law Attacked by Anti-Gay Senator Could Boost Flow of Cash to State, M. V. Lee Badgett and R. Bradley Sears, Daily Journal, Oct. 14, 2003. A Win at Cracker Barrel, The Nation, Feb. 10, 2003. Why I was a Dem for a Day, Daily Hampshire Gazette, June 2002. Commentary on Boy Scouts of America, WFCR, Amherst, MA, August 13, 2001. "Sexual Orientation," Richard Cornwall and M. V. Lee Badgett, entry for Encyclopedia of Feminist Economics, ed. by Meg Lewis and Janice Peterson, Edward Elgar, 2000. "Lesbians, social and economic situation," entry for International Encyclopedia of the Social and Behavioral Sciences, forthcoming. "One Couple's 'Penalty' remains another's privilege", with James Alm and Leslie A. Whittington, Boston Globe, Sept. 3, 2000, p. E2. Domestic partner status unfair to gay couples, Springfield Sunday Republican, op-ed April 2, 2000, p. B3. Do Sexual Orientation Policies Help Lesbians? in Women's Progress: Perspectives on the Past, Blueprint for the Future, Institute for Womens Policy Research, Fifth Policy Research Conference Proceedings, Washington, DC, 1998. "Census Data Needed," letter to the editor, The Washington Blade, November 7, 1997, p. 37. Same-sex partners bring nurturing--and financial benefits--to the altar, op-ed piece with Gregory Adams, Chicago SunTimes, June 8, 1996, p. 16. "The Last of the Modernists: A Reply," Feminist Economics, Vol. 1, No. 2, 1995. "Domestic Partner Recognition: Doing the Right--and Competitive--Thing," Synthesis: Law and Policy in Higher Education, Vol. 6, No. 4, Spring 1995. "Equal Pay for Equal Families," Academe, May/June 1994. "Lesbian and Gay Campus Organizing for Domestic Partner Benefits," in Higher Education Collective Bargaining During a Period of Change, Proceedings, Twenty-Second Annual Conference, April 1994, The National Center for the Study of Collective Bargaining in Higher Education and the Professions, Baruch College, CUNY, 1994. "Beyond Biased Samples: Challenging the Myths on the Economic Status of Lesbians and Gay Men," pamphlet published by National Organization of Gay and Lesbian Scientists and Technical Professionals and the Institute for Gay and Lesbian Strategic Studies, 1994. (Early version of book chapter of same title.)

Co-author and co-editor, Labor and the Economy, published by the Center for Labor Research and Education, Institute of Industrial Relations, UC Berkeley, 1989. "Looking for the Union Label: Graduate Students at U.C.," California Public Employee Relations, No. 85, June 1990. "Rusted Dreams: Documenting an Economic Tragedy," Labor Center Reporter, No. 219, October 1987. "How the Fed Works," Labor Center Reporter, No. 177, November 1986. EXPERT WITNESS EXPERIENCE (LITIGATION): Written testimony, Darby/Lazaro v. Orr, April 2013 (challenge to Illinois marriage equality prohibition) Written testimony, Sevcik v. Sandoval, 2012 (challenge to Nevadas marriage equality prohibition) Written Testimony, Bassett v. Snyder, No. 2:12-cv-100382012 (E.D. Mich.), 2012 (challenge to Michigans Domestic Partner Benefit Restriction Act). Written Testimony, Glossip v. Missouri Dept of Transp. and Highway Patrol Employees' Ret. Sys., No. 10-CC00434 (Mo. Cir. Ct., Cole Cnty.), 2011 (challenge to denial of death benefit to state troopers surviving same-sex partner). Written Testimony, Collins v. Brewer (later Diaz v. Brewer), No. 2:09-cv-02402 (D. Ariz.), 2010 (challenge to Arizonas cancellation of domestic partner benefits). Deposition and Trial Testimony, Perry v. Schwarzenegger (later Perry v. Brown), No. 3:09-cv-02292 (N.D. Cal.), 2010 (challenge to Californias Proposition 8). Deposition and Written Testimony, Varnum v. Brien, No. CV5965 (Iowa Dist. Ct., Polk Cnty.), 2007 (challenge to exclusion of same-sex couples from marriage in Iowa). Written Testimony, In re California Marriage Cases, Judicial Council Coordination Proceeding No. 4365 (Calif. Super. Ct., San Francisco Cnty.), 2004 (challenge to exclusion of same-sex couples from marriage in California). Written Testimony, Deane & Polyak v. Conaway, (Md. Cir. Ct., Baltimore Cnty.), 2005 (challenge to exclusion of same-sex couples from marriage in Maryland) LEGISLATIVE WITNESS EXPERIENCE (Selected): U.S. Senate Committee on Health, Education, Labor, and Pensions, S.811, The Employment Non-Discrimination Act of 2011, June 12, 2012. Written Testimony, S. 598, The Respect for Marriage Act: Assessing the Impact of DOMA on American Families, M. V. Lee Badgett, Ilan H. Meyer, Gary J. Gates, Nan D. Hunter, Jennifer C. Pizer, Brad Sears. July 2011. U.S. House of Representatives, Committee on Oversight and Government Reform, Subcommittee on Federal Workforce, Postal Service, and the District of Columbia on HR 2517: Domestic Partnership Benefits and Obligation Act of 2009, July 2009. U.S. House of Representatives, Committee on Education and Labor, Subcommittee on Health, Employment, Labor, and Pensions, Testimony on Employment Non-Discrimination Act (HR 2015), September 2007. Written and oral testimony on legislation or regulations in Alaska, California, Hawaii, Maryland, Massachusetts, New Hampshire, Oregon, Rhode Island, Vermont
SELECTED MEDIA APPEARANCES: Featured guest, Encounter, Radio National, ABC (Australian Broadcasting Corp), October 9, 2011. Featured guest, Faith Middleton Show, http://www.yourpublicmedia.org/content/wnpr/faith-middleton-show-when-gay-peopleget-married, Jan. 13, 2011.

Featured guest, Same-Sex Marriage, Five Years On, On Point, National Public Radio, May 27, 2009. http://www.onpointradio.org/2009/05/same-sex-marriage-five-years-on Featured guest, Gay Commerce, Talk of the Nation, National Public Radio, 1997. Featured guest, Gay Market, Odyssey: A Daily Talk Show of Ideas, NPR nationally syndicated show, 2005. http://www.chicagopublicradio.org/DWP_XML/od/2005_05/od_20050512_1200_4906/episode_4906.ram Interviewed on All Things Considered, Gay Marriage in Massachusetts, One Year Later, May 2005. http://www.npr.org/templates/story/story.php?storyId=4655621 Featured guest, CNN American Morning: The Future of Marriage, June 2006. http://www.law.ucla.edu/williamsinstitute/images/CNN_AmericanMorning_FutureOfMarriage_LeeBadgett_062006.mov
WORK IN PROGRESS AND PAPERS UNDER REVIEW: Assessing the effect of nondiscrimination policies related to sexual orientation and gender identity, Badgett and Samantha Schenck. Uncovering Gay, Lesbian, and Bisexual Poverty in the United States, Randy Albelda, M. V. Lee Badgett, and Alyssa Schneebaum. Are Gay People Happy? M. V. Lee Badgett and Alyssa Schneebaum. Minority stress and its association with cohabitation and Domestic Partnership registration in California, Natalya Maisel, Gary J. Gates, and M. V. Lee Badgett, August 2007, under review. Gay and Lesbian Families: A Research Agenda, Gary J. Gates and M. V. Lee Badgett, August 2006. "Breadwinner Dad, Homemaker Mom: An Interdisciplinary Analysis of Changing Gender Norms in the United States, 19771998." Lee Badgett, Pamela Davidson, Nancy Folbre, and Jeannette Lim, in progress, 2000.
SELECTED PRESENTATIONS OF PAPERS SUBMITTED TO ACADEMIC CONFERENCES: Assessing the effect of nondiscrimination policies related to sexual orientation and gender identity, Badgett and Samantha Schenck. Presented at: Sexual Orientation Discrimination in the Labor Market, University of Paris 1 Pantheon-Sorbonne, 6/20/2012; International Association for Feminist Economics, Barcelona Spain. 6/27/2012; APPAM conference, November 2012. Waves of Change: Is Latin America Really Following Europe in Same-Sex Couples?, at 8th Annual Update, Williams Institute, Global Arc of Justice: Sexual Orientation Law Around the World, March 14, 2009. Gay poverty, Presented at 2009 Allied Social Science Association Meeting; 2009 Association for Public Policy Analysis and Management Research Conference; 2008 IAFFE Research Conference, Torino, Italy, June 2008; Williams Institute Annual Update, February 2008. Registered Domestic Partnerships Among Gay Men and Lesbians: The Role of Economic Factors, (with Gary J. Gates and Natalya Maisel), presented at 2007 APPAM Meeting, Washington, DC; 2008 Allied Social Science Associations Annual meeting, New Orleans. Predicting Same-Sex Marriage in Europe & the US, Presented at 2008 IAFFE Research Conference, Torino, Italy, June 2008. Social Lab Outcomes: Same-Sex Couples and Legal Recognition, Temple University Law School, States as Social Laboratories, Oct. 20, 2007. The Double-Edged Sword in Gay Economic Life: Marriage and the Market. Washington & Lee School of Law, Feb 2008. Why Marry? Presented at 2006 IAFFE Research Conference, Sydney, Australia, July 2006; New School for Social Research, October 2006; Sociology Family Working Group, UCLA, 2006.

An exploration of foster care and adoption among lesbians and gay men, joint work with Jennifer Macomber, Kate Chambers, Gary Gates. Family Pride conference, Philadelphia, PA, May 2006. Survey Data on Sexual Orientation: Building a Professional Consensus, presented at 2005 Joint Statistical Association Meetings, August 2005. Also presented to Canadian Population Society, June 2005; Williams Project Annual Update, UCLA Law School, Feb. 2005. Alternative Legal Statuses for Same-sex couples and other families: Can Separate Be Equal Enough? Presented at International Association for Feminist Economics, Washington DC, July 2005; APPAM, Washington, DC, November 2005; UCLA Law School 2006. Looking into the European Crystal Ball: What Can the U.S. Learn About Same-Sex Marriage? Tulsa Gay and Lesbian History Project, October 2004; University of Connecticut, October 2004; Yale University, February 2005; American Psychological Association, August 2005; National Council of Family Relations (invited special session), 2005. Predicting Partnership Rights: Applying the European Experience to the United States, Yale University Law School, March 5, 2005. Asking the Right Questions: Making the Case for Sexual Orientation Data, Joint Statistical Meetings of the American Statistical Association, Toronto, August 2004; Williams Project Annual Update, UCLA, February 2005; Canadian Population Society, June 3, 2005. A New Gender Gap: Sex Differences in Registered Partnerships in Europe, International Association for Feminist Economics research conference, London, August 2004. Variations on an Equitable Theme: International Same-sex Partner Recognition Laws, Research Conference of International Associate for Feminist Economics, July 2002. Stockholm University, September 2003; University of Linz, Austria, November 2003; University of Amsterdam, June 2004; American Political Science Association, Chicago, Sept. 2004. The Myth of Gay Affluence and Other Tale Tales: The Political Economy of Sexual Orientation, University of California, San Diego, June 2002. "A Family Resemblance: Legal Recognition of Same-Sex Partners in the United States," Research Conference of International Association for Feminist Economics, Oslo, Norway, June 2001; University of Southern Maine, October 2001; University of Massachusetts, Feb. 2002; Washington University Political Science Department, March 2002; University of Wisconsin, LaCrosse, April 2002. "A Movement and a Market: GLBT Economic Strategies for Social Change," University of Wisconsin, LaCrosse, April 2002; Macalester College, April 2002. "Job Gendering: Occupational Choice and the Marriage Market," Research Conference of International Association for Feminist Economics, Ottawa, CA, June 1999. "Tolerance, Taboos, and Gender Identity: The Occupational Distribution of Lesbians and Gay Men," Research Conference of International Association for Feminist Economics, Amsterdam, The Netherlands, June 1998. The Impact of Affirmative Action on Public-Sector Employment in California, ASSA Meetings, 1997. Tolerance or Taboos: Occupational Differences by Sexual Orientation, presented at American Economic Association Meetings, Jan. 1996, and American Psychological Association convention in Toronto, August 1996. "A Race, Ethnicity, and Gender Analysis of the 1990-91 Recession," ASSA Meetings 1995. "Choices and Chances: Is Coming Out at Work a Rational Choice?" The Sixth North American Lesbian, Gay, and Bisexual Studies Conference, University of Iowa, November 18, 1994. "Civil Rights and Civilized Research: Constructing a Sexual Orientation Policy Based on the Evidence," Association for Public Policy Analysis and Management Research Conference, Oct. 27, 1994

"Where the Jobs Went in the 1990-91 Downturn," National Conference on Race Relations and Civil Rights in the Post Reagan-Bush Era, The Roy Wilkins Center, Humphrey Institute, University of Minnesota, October 1994. "Lesbian and Gay Campus Organizing for Domestic Partner Benefits," The American Political Science Association meeting, Sept. 1994. Panelist, "Developing Lesbian/Gay Studies in Economics," ASSA Meetings, 1994. "The Rainbow at Work: Differences in the Economic Status of Women Workers in the United States," presented at the 5th International Interdisciplinary Congress on Women, 1993. "The Economic Well-Being of Lesbians and Gay Men: Pride and Prejudice," December 1992, presented at 1993 ASSA Meetings. "Affirmative Action in a Changing Legal and Economic Environment," revised, December 1992, presented at 1993 ASSA Meetings. "The Effects of Structural Change on the Race and Gender Distribution of Employment," with Rhonda M. Williams, presented at Eastern Economic Association Meeting, 1992. "Changes in Racial Inequality Among Women: Evidence from Unemployment Rates," presented at AEA Meetings, 1992. "Labor Market Discrimination--Economic and Legal Issues for Gay Men and Lesbians," presented at AEA Meetings, 1992. "Rising Black Unemployment: Changes in Job Stability or in Employability?" presented at National Economic Assoc., 1992. "Rising Black Unemployment and the Role of Affirmative Action Policy," presented at APPAM Research Conference, Oct. 1990. INVITED KEYNOTES AND OTHER PRESENTATIONS (Selected): Invited Keynote Speaker, Workshop on Comparative Experiences in Protection of LGBT Rights in the Family and Marriage Relations, hosted by Ministry of Justice, Viet Nam, and UNDP, December 20-21, 2012, Hanoi. When Gay People Get Married, London School of Economics and Politics, Keynote for LSE Pride Week, November 2012. Keynote speaker at Roundtable, "Taking Poverty Out of the Closet," Horizons Foundation, San Francisco, March 19, 2012. The Impact of Allowing Same-sex Couples to Marry, Australian National Univ College of Law. 3/1/2012; Gough Whitlam Institute, Sydney Australia 3/2/2012. Australian Parliament, Canberra, "The Impact of Allowing Same-Sex Couples to Marry," 2/27/12. Keynote lunch speaker, E-Marriage Symposium, Michigan State University Law School, My Marriage, No Marriage, November 11, 2011. When Gay People Get Married, University of North Carolina Chapel Hill, 10/13/11. IAFFE, 2011, Hangzhou China: Roundtable on Sexuality and the Economy, Roundtable on Enhancing IAFFEs Vision in the 21st Century. June, 2011. Panelist, Same-Sex Marriage: Past, Present and Future, M. V. Lee Badgett, David Boies, and Nancy Cott, UCLA History Department, Feb. 24, 2011. Janus Lecture, Debate on same-sex marriage, Brown University, Feb. 17, 2011. Panelist, "Queering Where We Work: Bridging LGBTQ Policy Advocacy, Front-Line Activism, and Research," University of M. V. Lee Badgett--page 13

Toronto, Rotman School of Management, Nov. 5, 2010. The Economic Value of Marriage, Drake Constitutional Law Center's Annual Symposium, The Same-Sex Marriage Divide, Drake University, Iowa. 4/10/2010. Keynote address, Out and Equal in the Workplace: Sexual Orientation Discrimination, Univ of Pittsburgh School of Law. 3/18/2010. When Gay People Get Married: Portland State Univ Portland, OR. 4/23/2010; Univ of Chicago Alumni Weekend, Chicago, IL; Univ of Chicago. 6/3/2010; Kennesaw St Univ, Atlanta, GA. 3/24/2010; Andrew Young School of Public Affairs; Georgia State Univ. 3/25/2010; and many other bookstores and locations. "Challenges for LGBT Workers" Department of Labor at invitation of Assistant Secretary for Policy. 1/29/2010 Keynote Address on Sexual orientation and economics, University of Illinois-Chicago, Sept. 30, 2009. Multiple talks, University of Minnesota, Duluth, April 2009. On the Road to Equality: Health Care for LGBT Americans, Opening address, 2007 National LGBT Health Expo, Washington, DC, November 2, 2007. Does diversity make a difference? A view from the marketplace. Keynote Address, 7th annual international conference on diversity in organizations, communities, and nations, Amsterdam, The Netherlands. 7/1/2007 Not-So-Gay Divorce: A Reason for Marriage, Gay Divorce Conference, Kings College London, May 20, 2006. Thinking for Change/Changing our Thinking: Effective Research in GLBT Policy Debates, Presidential Invited Address, Division 44, American Psychological Association Convention, August 2005. Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men, University of Toronto, March 16-17, 2005. Panelist, Aging in the Gay Community, American Association of Retired Persons, June 2000. Money and Our Discontents, Keynote speech, Smart Women/Smart Money conference by the Astraea Foundation. Nov. 1999. "Homo Economics: The Myth of Gay Affluence and Other Tall Tales," University of Connecticut, March 1999; American University, October 1999. Same-Sex Couples and Public Policy, panel member, University of Maryland, College Park, October 1999. "A Bridge to the Future or the Road to Nowhere? Respectability and Lesbian and Gay Think Tanks," Remarks prepared for the Politics of Respectability Conference, University of Chicago, April 1999 Panelist, Unifying Anti-Subordination Theories, DePaul University Law School, February 1999. "Lesbians, Gays, and Bisexuals in a Gender Agenda," Roundtable on Feminism and Public Policy, 1998 ASSA Meetings, Chicago, IL. Economic Issues for Lesbians, Workshop on Lesbian Health Research Priorities, Institute of Medicine, Board on Neuroscience and Behavioral Health, Washington, DC, October 6, 1997. Lesbians, Gays, Bisexuals, and Transgenders: Who Gives, How Much, and Why, OutGiving Conference, Aspen, CO, Sept. 1997; Horizons Foundation and United Way, San Francisco, CA, Oct. 1997; NGLTF Creating Change conference, San Diego, Nov. 1997; Cream City Foundation Milwaukee, WI; Chicago, IL; Boston Foundation, February 1998. Lesbian and Gay Money: Is There a Gender Gap? Towson State University, March 1997. Panelist, Out in the Workplace, University of Pennsylvania, Feb. 10, 1997.

Workplace Policy Issues for Lesbian, Gay, and Bisexual People, Gender, Race, Economics, and Public Policy Conference of the New School for Social Research, April 5, 1996. Panelist, Compensating for Gender, Race, and Class Inequalities: Is Affirmative Action the Means to Social Justice, A Future of Equality: Feminist Rethinkings of the Affirmative Action and Welfare Debates, Yale University Womens Center, March 30, 1996. Equal Pay for Equal Work, University of Delaware Lavender Scholars Series, March 7, 1996. Lesbian and Gay Think Tanks, Center for Lesbian and Gay Studies, CUNY Graduate School, Feb. 9, 1996. Panelist, Affirmative Action in the 21st Century, Chicago United, Feb. 15, 1996. "The Economic Status of Lesbians and Gay Men: Discrimination, Data, and Debate," Bureau of Labor Statistics, U.S. Department of Labor, June 15, 1995; Institution for Social and Policy Studies, Yale University, Sept. 1995; University of Massachusetts, Boston, May 1996. Panelist, Gay Money: Power of the Purse, National Lesbian & Gay Journalists Association, Oct. 19, 1995. Panelist, Domestic Partner Benefits and Other Gay Rights Policy Issues: Creating Change on Campus, American Association of University Professors, June 9, 1995. Prepared testimony, Select Education and Civil Rights Subcommittee, Committee on Education and Labor, U. S. House of Representatives, Testimony on the 30th Anniversary of the Equal Pay Act, 1994. (Hearing cancelled at the last minute.) "Economic Evidence of Sexual Orientation Discrimination," Gay, Lesbian, and Bisexual Studies Faculty Seminars, Univ. of Massachusetts, Amherst, Dept. of Economics and Program for Gay, Lesbian, and Bisexual Concerns, May 11, 1994. "The Economics of Being Lesbian, Gay, or Bisexual: Pride, Prejudice and Politics," Brown Bag Series in Gay, Lesbian, and Bisexual Studies, University of Massachusetts, Amherst, May 11, 1994. "Thinking Homo/Economically," conference presentation, Center for Lesbian and Gay Studies, CUNY Graduate School, May 7, 1994. "Lesbian and Gay Campus Organizing for Domestic Partner Benefits," Annual Conference, The National Center for the Study of Collective Bargaining in Higher Education and the Professions, Baruch College, CUNY, April 19, 1994. Also presented at the American Political Science Association meeting, Sept. 1994. "The Changing Contours of Discrimination: Race, Gender, and Structural Economic Change," presented at University of Michigan, School of Social Work, Profs. Mary Corcoran and Sheldon Danziger, March, 15, 1994. "Redefining Families: Research and Policy," American Political Science Association meetings, Washington, D.C., Sept. 3, 1993. "A Cost/Benefit Analysis of Coming Out," presented at OUT Magazine press conference, broadcast on CSPAN, April 21, 1993. GRANTS: Five Colleges Inc: $178,000 (from Mellon Foundation)--Bridging the Liberal Arts and Professional Training in Public Policy & Social Innovation; $95,000--Social Justice Public Policy Practitioners-in-Residence Ford Foundation, 2003-2006 (2 grants), Data on Sexual Orientation (total $600,000) 1995 Wayne F. Placek Award, American Psychological Foundation, The Impact of Attitudes on Lesbian and Gay Male Earnings and Occupations. ($15,000) The Aspen Institute, Nonprofit Sector Research Fund, Lesbian, Gay, and Bisexual Giving and Volunteering, 1996. ($40,000) 2002 Wayne F. Placek Award, American Psychological Foundation, Health Insurance Inequality for Gay, Lesbian, and Bisexual People, with Michael A. Ash. PANELS AND COMMITTEES: Chair, Diversity Committee, International Association for Feminist Economics, 2011-present. M. V. Lee Badgett--page 15

Association for Public Policy Analysis and Management (APPAM): Institutional representative, 2007-present and Vice Chair 2011-12; Program Committee for 2010 conference. Nat'l Association of Schools of Public Administration and Affairs (NASPAA): Leslie Whittington Teaching Award Committee, 2010. Advisory Committee for Real Families, Real Facts: Research Symposiums on LGBT-headed Families, Family Pride, held May 2006. Planning committee and facilitator for research meeting held at Out & Equal Workplace conference, Sept. 2005. Reviewer, Wayne F. Placek Award, American Psychological Foundation Women's Funding Network, Lesbian Donor Research Project Advisory Committee, 1997-98 Visiting Lecturer and co-designer, Traveling Feminist Economics Ph.D. Course, Univ. of Minnesota, 1997-98 FELLOWSHIPS AND HONORS: Samuel F. Conti Faculty Fellowship, University of Massachusetts Amherst, 2013-2014. When Gay People Get Married, Distinguished Book Award, American Psychological Association, Division 44, 2010; chosen for Diversity Book Club, Kennesaw State University, 2010. Distinguished Faculty Lecture, University of Massachusetts Amherst, Nov. 9. 2009, and Chancellors Medal (the highest honor bestowed on individuals for exemplary and extraordinary service to the campus) Named one of twenty most influential lesbians in academia, Curve Magazine, 2008 Rockwood Leadership Fellow in Lesbian, Gay, Bisexual, and Transgender Community & Advocacy, 2008-09 2005 Dukeminier Award for Best Sexual Orientation Law Review Article College Outstanding Teacher Award, Social and Behavioral Sciences, University of Massachusetts, 2000-2001 Out 100, Out Magazine, 2001. One of Our Best and Brightest Activists, The Advocate, 2000. Lilly Fellow, Center for Teaching, University of Massachusetts, Amherst, 1999-2000 Certificate of Appreciation, Stonewall Center, 1999. Certificate of Recognition, University of Maryland at College Park Diversity Initiative, 1994-95 Graduate Opportunity Fellowship, 1985-86, UC Berkeley A.B. with General Honors, University of Chicago Maroon Key Society, University of Chicago Abram L. Harris Prize, 1978-79, 1979-80, University of Chicago AFFILIATIONS Association for Public Policy Analysis & Mgmt. American Economic Association Editorial Board (and past Associate Editor), Feminist Economics International Association for Feminist Economics (past board member) Editorial board, Sexuality Research and Social Policy ; Sexuality & the Law (Social Science Research Network); Law and Social Inquiry REFEREE: Quarterly Journal of Economics, Industrial Relations, Journal of Human Resources, Feminist Economics, Journal of Policy Analysis & Mgmt., Amer. Sociological Review, Review of Social Economy, Review of Economics and Statistics, Columbia University Press, National Science Foundation, Qualitative Sociology, Social Problems, Social Forces, University of Wisconsin Press, Journal of Population Economics, Routledge Press, Princeton University Press, Industrial and Labor Relations Review, Demography, American Journal of Sociology, Contemporary Economic Policy, Journal of Marriage and the Family, Cambridge Journal of Economics, Social Forces, Health Affairs, and others
Exhibit B
Bibliography Ash, Michael, and M. V. Lee Badgett, Separate and Unequal: The Effect of Unequal Access to Employment-Based Health Insurance on Gay, Lesbian, and Bisexual People, Contemporary Economic Policy, 24: 582-599, 2006. Badgett, M. V. Lee, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men, University of Chicago Press, 2001. Badgett, M. V. Lee, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, New York University Press, 2009. Badgett, M. V. Lee, The Economic Value of Marriage for Same-sex Couples, Drake Law Review, Vol. 58, No. 4, 2010, pp. 1081-1116. Badgett, M. V. Lee, Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits, Center for American Progress and Williams Institute, December 2007. Badgett, M. V. Lee, Laura Durso, Angel Kastanis, and Christy Mallory, The Business Impact of LGBT-Supportive Policies, Williams Institute, May 2013. Badgett, M. V. Lee, and Jody L. Herman, Patterns of Relationship Recognition by Same-Sex Couples in the United States, Williams Institute, November 2011. Becker, Gary, Treatise on the Family, Harvard University Press, Cambridge, 1991. Bernard, Tara Siegel and Ron Lieber, The High Price of Being a Gay Couple, New York Times, Oct. 3, 2009, at Al. Retrieved from http://www.nytimes.com/2009/10/03/yourmoney/03money.html (last accessed Sept. 4, 2012). Boele-Woelki, Katharina, Ian Curry-Sumner, Miranda Jansen, and Wendy Schrama. 2006. Huwelijk of geregistreerd partnerschap? Evaluatie van de wet openstelling huwelijk en de wet geregistreerd partnerschap. Ministerie van Justitie and Universiteit Utrecht. Buchmueller, Thomas and Christopher S. Carpenter, Disparities in Health Insurance Coverage, Access, and Outcomes for Individuals in Same-Sex Versus Different-Sex Relationships, 2000 2007, American Journal of Public Health, Vol. 100, No. 3, March 2010, 489-495 Day, Nancy E., and Patricia Schoenrade, Staying in the closet versus coming out: Relationships between communication and sexual orientation and work attitudes. Personnel Psychology, 50, 1997, pp. 147-163. DeNavas-Walt, Carmen, Bernadette D. Proctor, and Jessica C. Smith, Income, Poverty, and Health Insurance Coverage in the United States: 2008, U.S. Census Bureau, Current Population Reports, P60-236(RV), September 2009. Dinno, Alexis, and Chelsea Whitney. Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage, PlosONE, Vol. 8, No. 6, June 2013, pp 1-8.
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Driscoll, Jeanine M., Francis A. Kelley, and Ruth E. Fassinger, Lesbian identity and disclosure in the workplace: Relation to occupational stress and satisfaction. Journal of Vocational Behavior, Vol 48, 1996, 229242. Eggleston, Jonathan, Does the Legalization of Same-Sex Marriage or Civil Unions Affect Divorce Rates? University of Virginia, July 2011. Ellis, Allan L. and Ellen D. B. Riggle, The relation of job satisfaction and degree of openness about one's sexual orientation for lesbians and gay men. Journal of Homosexuality, 30(2), 1995, 75-85. Eskridge, William N. Jr., The Case for Same-Sex Marriage, Free Press, New York, 1996. Eskridge, William N., Jr., and Darren R. Spedale. 2006. Gay marriage: For better or for worse?: What we've learned from the evidence. New York: Oxford University Press. Florida, Richard and Gary J. Gates, Technology and Tolerance: The Importance of Diversity to High-Tech Growth, The Brookings Institution Survey Series, Sept. 2001. Folbre, Nancy, Holding Hands at Midnight: The Paradox of Caring Labor, Feminist Economics, Vol. 1, 1995, pp. 73-92. Gates, Gary, Marriage Equality and the Creative Class, Williams Institute, 2009. Gates, Gary, M.V. Lee Badgett, Jennifer Macomber, and Kate Chambers, Adoption and Foster Care by Gay and Lesbian Parents in the United States, Williams Institute and Urban Institute, March 2007. Griffith, Kristin H., and Michelle R. Hebl, The disclosure dilemma for gay men and lesbians: Coming out at work, Journal of Applied Psychology, 87(6), 2002, pp. 1191-1199. Naomi G. Goldberg, The Impact Of Inequality for Same-Sex Partners In Employer-Sponsored Retirement Plans, Williams Institute, 2009. Goldberg, Naomi, Michael Steinberger, and M.V. Lee Badgett, The Business Boost from Marriage Equality: Evidence from the Health and Marriage Equality in Massachusetts Survey, Williams Institute, May 2009. Hadley, Jack, John Holahan, Teresa Coughlin, and Dawn Miller, Covering the Uninsured In 2008: Current Costs, Sources Of Payment, And Incremental Costs, Health Affairs, 27, no.5, 2008, pp. w399-w415. Heck, Julia E., Randall L. Sell, and Sherri Sheinfeld Gorin, Health Care Access Among Individuals Involved in Same-Sex Relationships, American Journal of Public Health, June 2006; 96(6), pp. 1111-1118. Lofquist, Daphne, Terry Lugaila, Martin OConnell, and Sarah Feliz, Households and Families:
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2010, U.S. Census Bureau, C2010BR-14, April 2012. Retrieved from http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf (last accessed Sept. 4, 2012). Langbein, Laura, and Mark Yost, Same-Sex Marriage and Negative Externalities, Social Science Quarterly, Vol. 90, No. 2, 2009, 292-308. Nelson, Julie A., Household Economies of Scale in Consumption: Theory and Evidence, 56 Econometrica 1301, 1988. Pollak, Robert A, A Transaction Cost Approach to Families and Households, Journal of Economic Literature, Vol. 23, 1985, pp. 581-608. Ponce, Ninez A., Susan D. Cochran, Jennifer C. Pizer, and Vickie M. Mays, The Effects of Unequal Access to Health Insurance for Same-Sex Couples in California, Health Affairs, 2010: 29(8): 1539-1548. Raeburn, Nicole, Changing corporate America from inside out: Lesbian and gay workplace rights, University of Minnesota Press, 2004. Ragins, Belle R., and John M. Cornwell, Pink triangles: Antecedents and consequences of perceived workplace discrimination against gay and lesbian employees, Journal of Applied Psychology, 86(6), 2001, pp. 1244-1261. Ramos, Christopher, Naomi G. Goldberg, and M.V. Lee Badgett, The Effects of Marriage Equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex couples, Williams Institute, May 2009. Rostosky, Sharon S., and Ellen D. B. Riggle, Out at Work: The relation of actor and partner workplace policy and internalized homophobia to disclosure status. Journal of Counseling Psychology, 49(4), 2002, at pp. 411-419. Tax Foundation. (2013). State and Local General Sales Tax Rates. Retrieved from http://taxfoundation.org/article/state-and-local-sales-tax-rates-2011-2013 U.S. Census Bureau, Detailed Tables, 2011. Retrieved from http://www.census.gov/hhes/samesex/files/ss-report-tables.xls (last accessed Sept. 4, 2012). U.S. Census Bureau, Supplemental Tables, 2011. Retrieved from http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls (last accessed June 17, 2013). U.S. General Services Administration, Per Diem Rates Look-Up., lasted modified August 30, 2013, accessed September 27, 2013, Available at http://www.gsa.gov/portal/category/100120 Utah Office of Tourism. State of Utah Tourism Profile 2012. Available at http://travel.utah.gov/research_and_planning/documents/2012StateofUtahTourismProfile.pdf Utah Tourism Industry Coalition. State of the Tourism Industry in Utah. (Fall 2012). http://utahtourism.org/wp-content/uploads/2010/01/2012-state-of-tourism-v11.pdf
The Wedding Report. (2012). Wedding Industry Report-Utah.

https://www.theweddingreport.com/wmdb/index.cfm?action=db.viewdetail&t=s&lc=49&setloc=y.
Exhibit 2
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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Email: jdavidson@lambdalegal.org tborelli@lambdalegal.org prenn@lambdalegal.org sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 Email: cchristofferson@omm.com dsestito@omm.com mcristol@omm.com razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Email: kdove@swlaw.com mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK and MARY BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN GOODY and KAREN VIBE; FLETCHER WHITWELL and GREG FLAMER; MIKYLA MILLER and KATRINA MILLER; ADELE TERRANOVA and TARA NEWBERRY; CAREN No. 2:12-CV-00578-RCJ-PAL DECLARATION OF GEORGE CHAUNCEY, PH.D. IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
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CAFFERATA-JENKINS and FARRELL CAFFERATA-JENKINS; and MEGAN LANZ and SARA GEIGER, Plaintiffs, v. BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as Clerk for Clark County; AMY HARVEY, in her official capacity as Clerk for Washoe County; and ALAN GLOVER, in his official capacity as Clerk-Recorder for Carson City, Defendants
I, George Chauncey, hereby declare and state as follows: Expert Background and Qualifications 1. I am a Professor of History and American Studies and chair of the Department of
History at Yale University, where I have taught since 2006. My testimony will relate to my opinions as an expert in the history of the United States in the twentieth century and gender, homosexuality, sexuality, and civil rights in the United States, with a particular focus on the history of discrimination experienced by gay men and lesbians in the United States. I have actual knowledge of the matters stated in this declaration, and could and would so testify if called as a witness. 2. My background, experience, and publications are summarized in my curriculum
vitae, which is attached as Exhibit A to this declaration. In the past four years, I have testified as an expert either at trial or through declaration or been deposed as an expert in Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal.), Gill v. Office of Pers. Mgmt., No. 09-10309 (D. Mass.), Commonwealth of Mass. v. U.S. Dept of Health and Human Servs., No. 09-11156 (D. Mass.), Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D. Cal.), Dragovich v. U.S. Dept of the Treasury, CV 4:10-
-2App. 000050 - Pls.' SJ Opp'n, Kitchen v. Herbert
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01564-CW (N.D. Cal.), Donaldson v. Montana, No. 10-702 (Mont. 1st Jud. Dist. Ct.), and Jackson v. Abercrombie, No. 11-734 (D. Haw.) all of which involved testimony on topics similar to those discussed below. 3. From 1991 to 2006, I was a Professor of History at the University of Chicago. I
am the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994), which won the Organization of American Historians Merle Curti Award for the best book in social history and Frederick Jackson Turner Award for the best first book in any field of history, the Los Angeles Times Book Prize in History, and Lambda Literary Award. I am also the author of Why Marriage? The History Shaping Todays Debate over Gay Equality (New York: Basic Books, 2004); coeditor of three books and special journal issues, including Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989); and the author of numerous articles, which are listed in my curriculum vitae, attached to this declaration as Exhibit A. 4. In preparing this Declaration, I reviewed the Complaint in this case. I base my
opinions on my own research, experience and publications, the work of other historians and scholars as listed in the attached bibliography (Exhibit B), and the general statutes of a number of states, including Nevada, New York, Connecticut, Vermont, and New Hampshire. 5. I have been retained by counsel for Plaintiffs in this litigation. I am being
compensated at a rate of $400 per hour for preparation of reports or declarations; $450 per hour for time spent preparing for and giving deposition or trial testimony; and $4,000 per day spent preparing for or attending trial. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. Summary of Opinions 6. It is my professional opinion that the historical record, which is outlined below,
demonstrates that gay and lesbian people have been subject to widespread and significant discrimination and hostility in the United States. 7. Through much of the twentieth century, in particular, gay men and lesbians
suffered under the weight of medical theories that treated their desires as a disorder; penal laws
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that condemned their consensual adult sexual behavior as a crime; police practices that suppressed their ability to associate and socialize publicly; censorship codes that prohibited their depiction on the stage, in the movies, and on television; and federal policies and state regulations that discriminated against them on the basis of their homosexual status. These state policies and ideological messages worked together to create and reinforce the belief that gay and lesbian persons comprised an inferior class to be shunned by other Americans. 8. Despite social and legal progress in the past thirty years towards greater
acceptance of homosexuality, gay and lesbian people continue to live with the legacy of the antigay measures enacted in the 1930s, 1940s, and 1950s and the attitudes that motivated those measures. That legacy is evident both in laws that remain on the books and in the many legal protections that have not been enacted. 9. Among the many products of the legacy of discrimination in the twentieth century,
the most conspicuous today include Congress repeated failure to enact or even seriously consider federal legislative protections for gay and lesbian people in housing, employment, and public accommodations; the numerous state statutes and constitutional amendments that brand gay men and lesbians as second-class citizens by denying them the right to marry the person they love; and the federal Defense of Marriage Act, which prohibits the federal government from recognizing such a marriage when it does occur. The legacy of discrimination is also evident in the demeaning stereotypes and inflammatory rhetoric used by anti-gay organizations and public officials as they campaign to enact further measures meant to erode gay peoples civil rights and diminish their status as full citizens of the United States campaigns that are, to this day, very often successful. 10. Today, the limited civil rights enjoyed by gay and lesbian Americans vary
substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, gay men and lesbians often must rely on judicial decisions to secure equal rights.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.
History of Discrimination Against Gay and Lesbian People in the United States Introduction 11. While there is ample evidence that same-sex attraction, love, and intimacy have
persisted across the ages, most historians now agree that the concept of the homosexual and the heterosexual as distinct categories of people emerged only in the late nineteenth century. This concept had profound effects on the regulation of homosexuality. Early American legislators, drawing on their understanding of ancient Judeo-Christian prohibitions against sodomy and unnatural acts, penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct. While these laws prohibited conduct, it was in the twentieth century that governments began to classify and discriminate against certain of their own citizens on the basis of their status or identity as homosexuals. 12. Official, government-sanctioned hostility and discrimination has had a profound
and enduring negative impact on lesbians and gay men in American society. In the 1920s, the State of New York prohibited theaters from staging plays with lesbian or gay characters. Beginning in the 1930s and 1940s, many states prohibited gay people from being served in bars and restaurants. In the 1950s, the federal government banned the employment of homosexuals and insisted that its private contractors ferret out and dismiss their gay employees. It also prohibited gay foreigners from entering the country or securing citizenship. Until the 1960s, all states penalized sexual intimacy between men. Throughout the twentieth century, many municipalities launched police campaigns to suppress gay meeting places, and sought to purge gay civil servants from government employment. 13. Private hostility and discrimination, often encouraged by government officials, has
had a similarly profound and enduring negative effect on lesbians and gay men in American society. Until the 1970s, leading physicians and medical researchers claimed that homosexuality was a pathological condition or disease. In the 1930s, the Hollywood studios enacted a censorship code that for nearly thirty years prohibited the discussion of gay issues or the appearance of gay or lesbian characters in the eras most powerful communications medium. In the 1940s and 1950s, municipal police officials, state governmental leaders, local newspapers,
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and national magazines justified anti-gay discrimination and the suppression of gay meeting places by fostering frightening stereotypes of homosexuals as child molesters. These stereotypes have had enduring consequences, and continue to inspire public fears and hostility, especially concerning gay teachers and parents. In the 1980s, the early press coverage of AIDS reinforced the view that homosexuals were diseased and threatened other Americans. In the 1990s, many clergy condemned (and still condemn) homosexuality as sinful. The Southern Baptist Convention, for example, called for a boycott of all Disney products because Disney offered domestic partnership benefits to its employees and Disneyland organized gay theme nights. Also, some anti-gay groups threatened to organize boycotts against the sponsors of network television shows which included gay characters. 14. Historically, anti-gay measures often were enacted or strengthened in response to
periods of relative growth in the visibility or tolerance of gay people. For example, the effervescence and visibility of gay life in the 1920s contributed to the backlash gay and lesbian people endured during the Great Depression. The increased visibility of gay men and lesbians during the Second World War helped precipitate a second wave of hostility in the late 1940s and 1950s. The dramatically increased visibility of gay people in the 1970s and 1980s, and their success in persuading some state and local governments to include sexual orientation in their antidiscrimination laws, resulted in a wave of referenda and initiatives between 1977 and the early 1990s that overturned such laws and/or prohibited the enactment of others. 15. In recent decades, and especially in the last twenty years, many (though not all) of
these discriminatory measures were repealed, but considerable discrimination and animosity persisted. Given the long history of campaigns demonizing homosexuals as child molesters, it is unsurprising that in 1977 the year Anita Bryant launched her Save Our Children campaign two-thirds of Americans told pollsters they objected to lesbians or gay men being hired as elementary school teachers. By 1992, after fifteen years of extensive public discussion of this and other gay issues, opinion had shifted, but half of those parents polled still rejected the idea of their child having a gay elementary school teacher. By 2002, about forty percent of Americans still
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were unwilling to have elementary schools employ gay teachers, and one-third of them found gay high school teachers unacceptable. 16. When marriage emerged as the new flashpoint in debates over civil rights for gay
men and lesbians almost two decades ago, the debate was shaped by the legacy of anti-gay policies and attitudes. Many Americans initially responded to the idea that gay and lesbian couples should be allowed to marry with the same misgivings and even hostility with which they once greeted the idea of gay teachers or gay characters on television sitcoms. Opponents of marriage equality mobilized some of the most enduring anti-gay stereotypes to heighten public apprehension. For instance, during the 2008 campaign over Proposition 8 the California ballot initiative that revoked the marriage rights of gay men and lesbians that the California Supreme Court had recognized under the state constitution several television commercials aired by the supporters of Proposition 8 warned that marriage equality might encourage children to become homosexuals themselves. The recent campaign to repeal marriage equality in Maine used the same tactics, including recycling commercials and scripts from the Proposition 8 campaign because they had been so effective in California. Likewise, material from the Nevada campaign to amend the state constitution to bar marriage for same-sex couples stated Lets not experiment with Nevadas children. The approval of Proposition 8 in California, Question 1 in Maine, Question 2 in Nevada, and similar laws and constitutional amendments in a total of forty-one states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay people and their relationships. The civil rights enjoyed by gay and lesbian people throughout the United States continue to be subject to the vicissitudes of public opinion in an ever-changing social, political, and cultural landscape. 17. At several critical junctures, a handful of state and federal courts have been the
only authorities willing to defend the rights of gay people against the antipathy of the majority. In the 1950s and 1960s, at a time when overwhelming public sentiment supported the criminalization of gay bars and other meeting places, state courts in California and New York ruled that gay people had the right to assemble. In 1954, the United States Supreme Court ruled that the United States Post Office could not ban a gay political magazine from the mails. In the
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1990s, when voters in cities and states across the country were voting to ban states and local municipalities from enacting anti-discrimination protections for gay people, the Supreme Court, in Romer v. Evans, struck down a Colorado constitutional amendment that withdrew from gay men, lesbians, and bisexuals, but no others, specific legal protection from discrimination. Sometimes quickly and sometimes more slowly, these decisions played a critical role in shifts in public opinion. II. The Roots of Anti-Gay Discrimination 18. The first American laws against homosexual conduct were rooted in the earliest
English settlers understanding of the religious and secular traditions that prohibited sodomy, and they reflected the ambiguity of those traditions. Although sodomy included some forms of what today would be called homosexual conduct, medieval theologians did not use sodomy to refer systematically and exclusively to such conduct; for example, they rarely understood sodomy to include oral sex or sex between women. 19. The English Reformation Parliament of 1533 turned the religious injunction
against sodomy into the secular crime of buggery when it made the detestable and abominable vice of buggery committed with mankind or beast punishable by death. The English courts interpreted this to apply to sexual intercourse between a human and an animal and anal intercourse between a man and woman or between two men. 20. Colonial American statutes drew on these religious and secular traditions and
shared their imprecision in the definition of the offense. Variously defining the crime as (the religious) sodomy or (the secular) buggery, they generally proscribed anal sex between men and men, men and women, and humans and animals, but their details and their rationales varied. The southern colonies generally adopted the English law against buggery, while the Puritan New England colonies usually drew on religious traditions to penalize many forms of carnall knowledge, including adultery, fornication, sex with prepubescent girls, and men lying with men. Puritan clergy in the New England colonies were especially vigorous in their denunciation of sodomitical sins as contrary to Gods will, but their condemnation was motivated by the pressing need to increase the population and to secure the stability of the family, as well as
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their reading of scripture. In the Massachusetts Bay Colony, sodomy was prohibited in 1641 by a statute taken directly from Leviticus: If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death. Although several men were executed for sodomy, the colonies rarely prosecuted men for this offense, for reasons that still are not entirely clear to historians. III. Modern American History: 1890-1940 21. Prosecutions for sodomy and related offenses increased dramatically in the late
nineteenth and early twentieth centuries as a result of the emergence of the idea of the homosexual as a distinct category of person, the expansion of laws penalizing homosexual conduct, and the growing influence of religiously-inspired moral reform societies, which insisted on criminal prosecutions. In 1914, for example, the Supreme Court of Nevada held that the states statute criminalizing infamous crimes against nature encompassed oral as well as anal intercourse, each being an abominable crime not fit to be named among Christians. In re Benites, 37 Nev. 145, 149 (1914). 22. These types of prosecutions continued to penalize people on the basis of their
homosexual conduct rather than their identity as homosexuals. Current historical research suggests that the concept of the homosexual as a distinct category of person developed as recently as the late nineteenth century. The word homosexual appeared for the first time in a German pamphlet in 1868, and was introduced to the American lexicon only in 1892. Between the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding both to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of its citizens on the basis of their status or identity as homosexuals. This discrimination reached remarkable, and still largely unrecognized, proportions. 23. The dramatic growth of American cities in the late nineteenth century permitted
lesbians and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas. While everyone was likely to know everyone elses business in small towns, the size, complexity, and relative anonymity of cities made it easier for gay people
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(and other nonconformists) to forge a collective life with people like themselves, away from the eyes of hostile outsiders. The early history of the migration of gay people to the relative freedom of the cities is little understood, but it seems to have increased in the early twentieth century, at about the same time as growing numbers of African Americans fled the small towns of the Jim Crow South for the relative freedom of northern cities. Like African Americans, gay people, both black and white, found that the relative freedom of city life was tempered by continuing hostility and discrimination. 24. The emergence of gay and lesbian communities described in this declaration took
place in varying degrees in every American city studied by historians. Because the field of lesbian and gay history remains relatively young in 2012 and has been hampered by the legacy of censorship described below, historians still know most about the history of such communities in major metropolitan centers such as New York, Chicago, San Francisco, and Los Angeles, and they will therefore loom large in the history that follows. However, recent studies of the gay history of smaller cities and communities, ranging from Buffalo, New York, and Portland, Oregon, to Jackson, Mississippi, and its surrounding rural areas, both confirm the broad outlines of the history described here and reveal regional variations in that history. Important recent historical studies of the development of federal and military policies concerning homosexuality and gay citizens have documented discriminatory laws and policies that had nationwide effects. 25. New York City provides one of the best documented examples of the emergence
of a distinctive gay world in the early twentieth century. By the 1910s, New Yorks gay world included gay residential and commercial enclaves in several immigrant, African American, and bohemian neighborhoods; widely publicized dances and other social events; and a host of commercial establishments where gay people gathered, ranging from saloons, speakeasies, and bars to cheap cafeterias and elegant restaurants. In the 1920s and early 1930s, gay writers and performers produced a flurry of gay literature and theater. Some gay people were involved in long-term relationships they called marriages. Most remained very careful to conceal their homosexuality from non-gay associates, though, for fear of losing their jobs, homes, and respect.
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26.
Many Americans responded to the growing visibility of gay life with fascination
and sympathy, regarding it as simply one more sign of the growing complexity and freedom from tradition of a burgeoning metropolitan culture. Popular fascination with gay culture reached a crescendo during the Prohibition Era (or Jazz Age), when lesbians ran some of the most popular tearooms and cafes in bohemian neighborhoods such as New Yorks Greenwich Village and Chicagos Towertown. That said, the poor, immigrant, African American, and bohemian neighborhoods where gay life became most visible were regarded as the underside of city life by respectable society. A. Hostile Religious and Medical Views Prompted the Escalation of Anti-Gay Policing in the Early Twentieth Century 27. Other Americans regarded the growing visibility of lesbian and gay life with
dread. Hostility to homosexuals sometimes was motivated by an underlying uneasiness about the dramatic changes underway in gender roles at the turn of the last century. In this era indeed until 1973 homosexuality was classified as a disease, defect, or disorder. Conservative physicians initially argued that the homosexual (or sexual invert) was characterized as much by his or her violation of conventional gender roles as by specifically sexual interests. At a time when many doctors argued that women should be barred from most jobs because employment would interfere with their ability to bear children, numerous doctors identified suffragists, women entering the professions, and other women challenging the limits placed on their sex as victims of a medical disorder. Thus, doctors explained that the female possessed of masculine ideas of independence was a degenerate and that a decided taste and tolerance for cigars, * * * [the] dislike and incapacity for needlework * * * and some capacity for athletics were all signs of female sexual inversion. Similarly, another doctor thought it significant that a male pervert never smoked and never married; [and] was entirely averse to outdoor games. 28. Such views about gender roles lost their credibility once public opinion had come
to accept significant changes in womens roles in the workplace and political sphere, but doctors continued for several more decades to identify homosexuality per se as a disease, mental defect, disorder, or degeneration. For generations, such hostile medical pronouncements
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provided a powerful source of legitimation to anti-homosexual sentiment, just as medical science previously had legitimized widely held (and subsequently discarded) beliefs about male superiority and white racial superiority. The medical professions classification of homosexuality as a defect or disorder also helped spur and legitimate anti-gay law enforcement activity throughout the country. 29. Religiously-inspired hostility to homosexuality also inspired an escalation in anti-
gay policing. In the late nineteenth century, native-born Protestants organized numerous antivice societies to suppress what they regarded as the sexual immorality and social disorder of the nations burgeoning Catholic and Jewish immigrant neighborhoods. Although these organizations focused on female prostitution and what they regarded as the weakening of moral strictures governing relations between men and women, they also opposed the growing visibility of homosexuality, which they regarded as a particularly egregious sign of the loosening of social controls on sexual expression under urban conditions. They encouraged the police to step up harassment of gay life as one more part of their campaigns to shut down dance halls and movie theaters, prohibit the consumption of alcohol and the use of contraceptives, dissuade restaurants from serving an interracial mix of customers, and otherwise impose their vision of the proper social order and sexual morality. In New York City in the 1910s and 1920s, for instance, the Society for the Suppression of Vice (also known as the Comstock Society) worked closely with the police to arrest several hundred men for homosexual conduct, and also participated in a raid on a lesbian-run caf and encouraged the deportation of the cafs owner. In Massachusetts, the Watch and Ward Society, established as the New England Society for the Suppression of Vice, conducted surveillance on virtually all the popular gay bars and gathering places of the time. 30. As a result of the pressure from Protestant moral reform organizations, municipal
police forces began using misdemeanor charges, such as disorderly conduct, vagrancy, lewdness, loitering, and so forth to harass homosexuals. These state misdemeanor or municipal offense laws, which carried fewer procedural protections than felony sodomy charges, allowed further harassment of individuals engaged in same-sex intimacy. In some cases, state officials tailored these laws to strengthen the legal regulation of homosexuals. For example, in 1923, the New
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York State legislature specified for the first time that a mans frequent[ing] or loiter[ing] about any public place soliciting men for the purpose of committing a crime against nature or other lewdness was a form of disorderly conduct. Many more men were arrested and prosecuted under this misdemeanor charge than for sodomy. Between 1923 and 1966, when Mayor John Lindsay ordered the police to stop using entrapment to secure arrests of gay men, there were more than 50,000 arrests on this charge in New York City alone. 31. The social marginalization of gay men and lesbians gave both the police and the
public even broader informal authority to harass them. The threat of violence and verbal harassment deterred many gay people from doing anything that might reveal their homosexuality in public. Gay people knew that anyone discovered to be homosexual risked the loss of livelihood and social respect, so most gay people were careful to lead a double life, hiding their homosexuality from their heterosexual employers and other associates. B. 32. Censorship The growing visibility of lesbian and gay life in the early twentieth century
precipitated censorship campaigns designed to curtail gay peoples freedom of speech and the freedom of all Americans to discuss gay issues. 33. The earliest gay activists fell victim to such campaigns. In 1924, when the police
learned of the countrys earliest known gay political group, which had been established by a postal worker in Chicago, they raided his home and seized his groups files and membership list. After the raid, the group ceased publication of its short-lived magazine, Friendship and Freedom. In the 1910s and 1920s, a handful of plays included lesbian and gay characters or addressed homosexual themes. But in 1927, after The Captive, a serious drama exploring lesbianism, opened on Broadway to critical acclaim, New York State passed a padlock law that threatened to shut down for a year any theater that staged a play with lesbian or gay characters. Given Broadways national importance as a staging ground for new plays, this law effectively censored American theater for a generation. 34. Theater censorship occurred in other cities in addition to New York. In the early
twentieth century, Boston had a particularly strict culture of moral purity censorship, and the
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phrase Banned in Boston was familiar to people throughout the country. In 1935, for instance, Boston Mayor Frederick W. Mansfield banned Lillian Hellmans The Childrens Hour, a play with lesbian themes. Mansfield explained his decision to the press by asserting that the play showed moral perversion, the unnatural appetite of two women for each other. 35. Such censorship had even wider-reaching effects when it spread to the movies. A
censorship movement led by religious leaders threatened the Hollywood studios with mass boycotts and restrictive federal legislation if they did not begin censoring their films. Seeking to avoid federal legislation, the studios established a production code (popularly known as the Hays Code) that from 1934 on prohibited the inclusion of gay or lesbian characters, discussion of homosexual issues, or even the inference of sex perversion in Hollywood films. This censorship code remained in effect for some thirty years and effectively prohibited discussion of homosexuality in a powerful communications medium. This censorship stymied and delayed democratic debate about homosexuality for more than a generation. C. The Great Depression and the Curtailment of Gay Peoples Freedom of Association 36. In the early years of the Great Depression, restrictions on gay life intensified. By
depriving millions of men of their role as breadwinners, the Depression transformed alreadyexisting anxiety over gender roles into a crisis in gender and family relations. Federal, state, and local governments responded to this perceived crisis with policies that directly affected women and gay people. New Deal public works projects, for instance, which offered jobs only to male heads of households, were designed in part to restore mens status in their families and larger society, even when this meant limiting womens economic opportunities. 37. The apparent fragility of the family and gender arrangements made the visibility of
gay life seem more threatening to many people, especially given the long-standing representation of gay men and lesbians as gender deviants. After a generation in which gay life had been relatively visible and integrated into urban public life, restrictions on gay life increased. Gay people were forced into hiding by new laws that pushed gay people out of restaurants and bars, as well as off the stage and silver screen.
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38.
New regulations curtailed gay peoples freedom of association. In New York
State, for instance, the State Liquor Authority, established after the repeal of Prohibition in 1933, issued regulations prohibiting bars, restaurants, cabarets, and other establishments with liquor licenses from employing or serving homosexuals or even allowing them to congregate on their premises. The Authoritys rationale was that the mere presence of homosexuals made an establishment disorderly, and when the courts rejected that argument, the Authority began using evidence of unconventional gender behavior or homosexual solicitation gathered by plainclothes investigators to provide proof of a bars disorderly character. Hundreds of bars were closed for this reason in the next thirty years in New York City alone. 39. Similar regulations were introduced around the country in subsequent years. In
California in the 1950s, notes historian Nan Alamilla Boyd, the Alcoholic Beverage Control Board collapsed the difference between homosexual status (a state of being) and conduct (behavior) and suggested that any behavior that signified homosexual status could be construed as an illegal act. Simple acts such as random touching, mannish attire (in the case of lesbians), limp wrists, high-pitched voices, and/or tight clothing (in the case of gay men) became evidence of a bars dubious character and grounds for closing it. IV. Modern American History: World War II 40. Changes in the policies of the Armed Forces of the United States during the
Second World War both reflected and expanded the governments growing campaign of classifying and discriminating against gay citizens. The military had long made sodomy a criminal offense (and, indeed, it continues to do so). But the Second World War marked the first time the military moved beyond criminalizing homosexual conduct to develop policies that systematically endeavored to exclude personnel on the basis of their identity as homosexuals. All of the branches of the armed forces put in place screening mechanisms designed to ferret out homosexuals during the induction process. Thousands of men and women were kept from serving their country, and often faced public opprobrium as a result. Notwithstanding the new prohibition, many gay men and lesbians served in the armed forces in the Second World War, but they had to be careful to whom they disclosed their sexual orientation.
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41.
Across the country, notwithstanding legal restrictions, the number of lesbian and
gay bars and other meeting places increased during the war years. Military authorities responded to the growth in the number of gay meeting places by collaborating with civil authorities to close them or at least keep servicemen from visiting them. The Army and the Navy created a joint Disciplinary Control Board that worked together with state liquor control agents and municipal police forces to identify and police bars and night clubs, including almost one hundred in San Francisco alone, with the intent of harassing and suspending the licenses of those that served a gay clientele. Military and civilian police also cooperated in anti-vice raids against gay bars and other meeting places. Servicemen who were caught in these raids risked being discharged, and several thousand patriotic Americans who honorably served to defend their country were not honorably discharged solely because of their gay or lesbian identity. 42. Following the war, the Veterans Administration denied GI Bill benefits to soldiers
who had received undesirable discharges. Eventually, most other groups of soldiers with undesirable discharges had their benefits restored, but the Veterans Administration steadfastly refused to restore them to homosexuals. This meant that gay veterans members of the Greatest Generation who had risked their lives for their country before being discharged were denied the educational, housing, and readjustment allowances provided to millions of their peers. V. Modern American History: Post-WWII Period A. 43. Government Policies in the McCarthy Era Even the stepped-up policing of gay life in the 1930s and 1940s did not equal the
scale of discrimination faced by gay men and lesbians in the generation following the Second World War. The persecution of gay men and lesbians dramatically increased at every level of government after the war. 44. In 1950, following Senator Joseph McCarthys denunciation of the employment of
gay persons in the State Department, the Senate conducted a special investigation into the employment of homosexuals and other sex perverts in government. The Senate Committee recommended excluding gay men and lesbians from all government service, civilian as well as military. To support this recommendation, the Committee argued that homosexual acts violated
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the law, and it gave its imprimatur to the prejudice that those who engage in overt acts of perversion lack the emotional stability of normal persons and that homosexuals constitute security risks. 45. The Committee also portrayed homosexuals as predators: [T]he presence of a sex
pervert in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. . . . One homosexual can pollute a Government office. 46. The Senate investigation and report were only one part of a massive anti-
homosexual campaign launched by the federal government after the war. The Senate Committee reported that [a] spot check of the records of the Civil Service Commission indicates that between January 1, 1947, and August 1, 1950, approximately 1,700 applicants for Federal positions were denied employment because they had a record of homosexuality or other sex perversion. In 1953, President Eisenhower issued an executive order requiring the discharge of homosexual employees from federal employment, civilian or military. Thousands of men and women were discharged or forced to resign from civilian and military positions because they were suspected of being gay or lesbian. At the height of the McCarthy era, the U.S. State Department discharged more homosexuals than communists. The governments purge of its gay employees prompted the founding of some of the earliest gay rights organizations. Frank Kameny, for one, founded the first gay rights group in Washington, D.C. after he was dismissed from his job as a government astronomer for being homosexual in 1957. 47. President Eisenhowers executive order prohibiting federal employment for
homosexuals also required defense contractors and other private corporations with federal contracts to ferret out and discharge their homosexual employees. Many other private employers without federal contracts adopted the federal governments policy by refusing to hire gay people. Furthermore, the FBI initiated a widespread system of surveillance to enforce the executive order.
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As the historian John DEmilio has noted, The FBI sought out friendly vice squad officers who supplied arrest records on morals charges, regardless of whether convictions had ensued. Regional FBI officers gathered data on gay bars, compiled lists of other places frequented by homosexuals, and clipped press articles that provided information about the gay world. . . . Federal investigators engaged in more than fact-finding; they also exhibited considerable zeal in using information they collected. 48. Two years after the Senate Committee recommended that homosexuals be purged
from government employment, Congress signaled its conviction that homosexuals had no place in American society in the most palpable way possible: by denying them entry into the country. In 1952, Congress prohibited homosexuals (whom it called psychopaths) from entering the country, much as it previously had prohibited immigration from Asia and curtailed the immigration of Jews and Catholics from eastern and southern Europe. In the case of homosexuals, the prohibition extended beyond people seeking long-term residency or citizenship; a generation of foreign visitors applying for mere tourist visas had to sign statements swearing they were not homosexual before they could make even the briefest trip to the United States. 49. Many state and local governments followed the federal governments lead in
seeking to ferret out and discharge their homosexual employees. As a result of these official policies, countless state employees, teachers, hospital workers, and others lost their jobs. Beginning in 1958, for instance, the Florida Legislative Investigation Committee, which had been established by the legislature in 1956 to investigate and discredit civil rights activists, turned its attention to homosexuals working in the states universities and public schools. Its initial investigation of the University of Florida resulted in the dismissal of fourteen faculty and staff members, and in the next five years it interrogated some 320 suspected gay men and lesbians. It pressured countless others into relinquishing their teaching positions, and had many students quietly removed from state universities. Its 1959 report to the legislature called the extent of homosexual activity in the states school system absolutely appalling. In addition, in a wellpublicized 1949 case in Massachusetts, Dr. Miriam Van Waters, long-time superintendent of the Womens Reformatory at Framingham, was dismissed by the Commissioner of Corrections
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because she had either not known or had known and had not prevented an unwholesome relationship that existed between inmates of the Reformatory, which had resulted in crushes, courtships, and homosexual practises [sic] among the inmates. She was then forced to defend her policies in public hearings held by a Massachusetts house committee over several months. 50. During this period, both federal and local agencies sought to curtail gay peoples
freedom of speech and the freedom of all people to discuss homosexuality. In 1954, postal officials in Los Angeles banned an issue of the first gay political magazine, ONE, from the mails, a ban overturned by the Supreme Court in 1958. In some cities the police continued to shut down newsstands that dared to carry it. In 1957, San Francisco officials arrested Lawrence Ferlinghetti and Shig Murao for publishing and selling Howl, a poem by Allen Ginsberg that openly proclaimed his homosexuality. 51. Censorship, government-sanctioned discrimination, and the fear of both made it
difficult for gay people to organize and speak out on their own behalf. Given the severity of antigay policing, for instance, the Mattachine Society, the most significant gay rights organization in the 1950s, repeatedly had to reassure its anxious members that the police would not seize its membership list. In Denver in 1959, a few weeks after Mattachine held its first press conference during a national convention, the police raided the homes of three of its Denver organizers; one lost his job and spent sixty days in jail. B. 52. The Demonization of Homosexuals The official harassment of homosexuals received further legitimization from a
series of press and police campaigns in the 1940s and 1950s that fomented demonic stereotypes of homosexuals as child molesters out to recruit the young into their way of life. In response to a series of local panics over sex crimes against women and children, in which homosexuals were almost never identified as the culprits, numerous local newspapers and national magazines claimed that children faced a growing threat from homosexuals. The press warned that, in breaking with social convention to the extent necessary to engage in homosexual behavior, a man had demonstrated the refusal to adjust to social norms that was the hallmark of the psychopath.
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In 1950, Coronet, a popular national magazine, asserted: Once a man assumes the role of homosexual, he often throws off all moral restraints. . . . Some male sex deviants do not stop with infecting their often-innocent partners: they descend through perversions to other forms of depravity, such as drug addiction, burglary, sadism, and even murder. 53. The demonization of homosexuals by the press was reinforced by the statements of
public officials. A Special Assistant Attorney General of California claimed in 1949 that [t]he sex pervert, in his more innocuous form, is too frequently regarded as merely a queer individual who never hurts anyone but himself. All too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes, and is ever seeking for younger victims. Detroits prosecuting attorney demanded the authority to arrest, examine, and possibly confine indefinitely anyone who exhibited abnormal sexual behavior, whether or not dangerous. In 1957, the Hartford Courant reported on comments by a Connecticut judge at a criminal sentencing. The judge endorsed jail terms for homosexuals because his observation was that homosexuality ha[d] spread much too far. 54. Such press campaigns and official statements created fearsome new stereotypes of
homosexuals as child molesters, which continue to incite public fears about gay teachers and parents as well as other gay people who come into contact with children. Between the late 1930s and late 1950s, public hysteria incited by such press campaigns prompted more than half the state legislatures to enact laws allowing the police to force persons convicted of certain sexual offensesor, in some states, merely suspected of being sexual deviantsto undergo psychiatric examinations. These examinations could result in indeterminate civil confinements for individuals deemed in need of a cure for their homosexual pathology. C. 55. Another Escalation of Anti-gay Policing During the postwar era, bars became an especially important meeting place for
lesbians and gay men because they were often the only public spaces in which people dared to be openly gay. Given their growing importance to gay people as a social center and the growing pressure on the police to enforce regulations prohibiting bars from serving homosexuals, gay bars became an important battleground in the postwar years. Despite the prevailing popular animosity
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toward homosexuals, state courts in New York and California issued rulings that curtailed the right of state liquor authorities and the police to discriminate against gay bar patrons. Official antipathy to homosexuals was so strong, however, that police officials circumvented or simply disregarded these judicial decisions. 56. This sharp escalation in the policing of gay life after the Second World War
occurred throughout the country. In 1955, for example, the government of Boise, Idaho launched a fifteen-month investigation of gay men in town, interrogating fourteen hundred persons and pressuring men known to be gay to reveal the names of other gay men. Police departments from Seattle and Dallas to New Orleans and Baltimore stepped up their raids on bars and private parties attended by gay and lesbian persons, and made thousands of arrests for disorderly conduct. By 1950, Philadelphia had a six-man morals squad arresting more gay men than the courts knew how to handle, some 200 a month. In the District of Columbia, there were more than a thousand arrests every year. In 1965, the Boston City Councils Committee on Urban Renewal debated whether to bulldoze several downtown gay bars. A proponent of the effort, City Councilor Frederick Langone, gave a speech at the meeting calling for the destruction of these incubators of homosexuality and indecency and a Bohemian way of life, and insisting that [w]e must uproot these joints so innocent kids wont be contaminated. Many gay bars were razed in the revitalization that followed. In 1969, a Councilman in Rocky Hill, Connecticut called for a nightclub frequented by homosexuals (Alices Joker Club) to be closed as a public nuisance because it was a threat to the morals of the towns citizens. From 1933 until the mid 1960s, hundreds of bars that tolerated gay customers were closed in New York City alone. Some bars in New York and Los Angeles posted signs telling potential gay customers: If You Are Gay, Please Stay Away or, more directly, We Do Not Serve Homosexuals. VI. The Gay Rights Movement and its Opponents in the 1970s and 1980s A. 57. Early Successes of the Gay and Lesbian Rights Movement The dramatic escalation in policing and suppression in the post-war years failed to
eradicate gay life. In larger cities, lesbians and gay men covertly patronized bars and restaurants, which they turned into informal meeting places, took over remote sections of public beaches, and
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held dances and parties. In many smaller towns, gay life took shape unnoticed in church choirs, amateur theaters, and womens softball leagues, and was sustained by closely knit social circles. 58. Nonetheless, most gay men and lesbians responded to the escalation in policing
after the Second World War by keeping their homosexuality carefully hidden from non-gay people. They developed elaborate verbal codes that allowed them to communicate with one another while remaining invisible to hostile outsiders. The word gay is a good example of this: before the 1970s few heterosexuals realized gay people had given it a distinctly homosexual meaning. But the very success of such subterfuges in concealing gay life made it difficult for gay people to find one another in the 1950s, and it severely limited the capacity of gay people to organize on their own behalf. 59. The earliest gay rights organizations, the Mattachine Society, ONE, and the
Daughters of Bilitis, were founded in the early 1950s at the height of the demonization of homosexuals as dangerous, irrational, and unstable pariahs who threatened the nations children as well as national security. This initial generation of activists worked to meet and educate potential allies among sociologists, psychologists, criminologists, and other professionals who had the credibility to speak on homosexuality that was denied to homosexuals themselves. 60. Gay rights organizations began to influence public policy in the mid-1960s,
although the pace of change varied enormously across the country. The New York Mattachine Societys success in 1966 in persuading Mayor John Lindsay to end the widespread police use of entrapment had a profound effect on gay male New Yorkers, who for the first time in decades did not have to worry that the men who approached them in bars and elsewhere were undercover policemen. New York and California state court rulings finally curtailed the policing of gay bars and other meeting places in those states in the 1960s, but in some other parts of the country the police continued to raid gay bars well into the 1970s and 1980s. The growing divergence in the treatment of gay people in different parts of the country prompted a growing number of gay people to migrate from hostile areas to New York, Boston, San Francisco, Los Angeles, Chicago, and other more tolerant cities and regions. This mass migration, in turn, affected the political and
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cultural climate of those cities and regions, making them more likely to enact gay rights legislation and similar policies. 61. Major institutions that once helped legitimize anti-gay attitudes also began to
change their positions. Medical writers and mental health professionals whose stigmatization of homosexuality as a disease or disorder had been used to justify discrimination for decades were among the first to change their views. In 1973, the American Psychiatric Association voted to remove homosexuality from its list of mental disorders. The American Psychological Association soon followed suit. However, the American Psychiatric Associations decision was fiercely opposed by prominent members of the association such as Charles Socarides and Irving Bieber. They and other medical professionals who claimed homosexuality was a treatable psychological disorder continued to receive considerable attention. 62. Censorship of gay images and speech declined. By the early 1960s, competition
from television led the Hollywood studios to reorganize their nearly thirty-year-old censorship code, enabling the studios to make films for adult viewers which addressed serious themes such as homosexuality. These themes remained off-limits for television. The studios initially still included very few gay characters in their features, and the television networks included virtually none, but ending formal censorship opened a door that resulted in significant cultural changes in later years. 63. A small but growing number of municipalities enacted legislation protecting
people from certain forms of discrimination on the basis of their sexual orientation. In 1972, East Lansing, Michigan, home to Michigan State University, became the first town to do so. Within five years, another twenty-seven communities passed such legislation, more than half of them university towns such as Ann Arbor, Austin, Berkeley, and Madison. They were joined by a handful of larger cities such as San Francisco, Minneapolis, Seattle, and Detroit. During this same period, however, a number of states enacted new legislation that criminalized homosexual sodomy, even as they decriminalized heterosexual sodomy. 64. Attitudes toward homosexuals and homosexuality in some religious denominations
also began to change. Since the 1970s, many mainline Protestant denominations have issued
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official statements condemning legal discrimination against homosexuals and affirming that homosexuals ought to enjoy equal protection under criminal and civil law. Several of these groups descended from the historically influential denominations whose religious authority had been invoked to justify colonial statutes against sodomy. The Lutheran Church in America, the Unitarian Universalist Association, the United Methodist Church, the United Church of Christ, the Protestant Episcopal Church, the Disciples of Christ, and the United Presbyterian Church in the U.S.A. all issued statements in support of civil rights for gay men and lesbians by 1980. 65. Those seven denominations, however, account for only 10.3 percent of the
American population. Many more Americans belong to faith traditions that remain strongly opposed to gay civil rights, including 26.3 percent affiliated with historically white evangelical Protestant churches and 23.9 percent who are Catholics. Leading clergy and laypeople from those churches have played a major role in opposing gay rights measures across the country. B. 66. Anti-Gay Discrimination in the 1970s and 1980s Gay men and lesbians continued to suffer discrimination at the hands of
government officials in the 1970s and 1980s. For example, police continued to raid gay bars in some cities. In 1970, the Connecticut State Motor Vehicle Department refused to renew the drivers license of a man on the grounds that he was an admitted homosexual and that his homosexuality makes him an improper person to hold an operators license. 67. Beginning in the late 1970s, the initial success of the gay movement in securing
local gay rights legislation, as well as the increasing visibility of gay people in the media, provoked a vigorous, negative reaction. Anti-gay rights advocates drew on pernicious stereotypes developed in previous decades to argue that enacting gay rights laws, permitting gay people to teach, and even simply allowing gay characters to appear on television sitcoms threatened the security of children and the stability of the family. 68. The anti-gay rights campaign of this era was effectively launched in 1977, when
Anita Bryant, a prominent Baptist singer and the spokeswoman for the Florida citrus growers, led a campaign to Save Our Children from newly enacted civil rights protections for gay men and lesbians in Dade County, Florida. Her success in persuading a decisive majority of Miami voters
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to vote against the ordinance depended heavily on her use of the still powerful postwar images of homosexuals as child molesters. Her organization published a full-page advertisement the day before the vote warning that the other side of the homosexual coin is a hair-raising pattern of recruitment and outright seductions and molestation. Her victory in Miami prompted groups in other cities to take up the cause, and in the next three years, laws extending civil rights protections to gay men and lesbians were repealed in more than a half-dozen bitterly fought referenda stretching from St. Paul, Minnesota to Eugene, Oregon. Gay rights advocates managed to defeat such referenda only in two elections, in November 1978, when Seattle voted to preserve its antidiscrimination ordinance and when California rejected the Briggs Initiative. The Briggs Initiative was a proposal so onerous it would have prohibited public school teachers, gay or straight, from saying anything that could be construed as advocating homosexuality. 69. The Save Our Children campaign had other far reaching effects. The day after the
Dade County gay rights ordinance was repealed, the governor of Florida signed into law a ban on adoption by lesbians and gay men, the first such statewide prohibition. Thousands of children who might otherwise have had loving parents were thus denied the stability of family life. Similarly, in 1985, Massachusetts Governor Michael Dukakis removed two boys from their foster care placement with a gay male couple and implemented a policy of preferred placement in traditional family settings. While Massachusetts ban was reversed in 1990 as a result of litigation, the Florida ban remained in effect until 2010. 70. Across the country, the unfounded fear that homosexuals posed a threat to children
itself threatened some children: those already being raised by lesbians and gay men. In the 1970s, most children being raised by lesbian or gay parents had been born before their parents came out as gay. When a parent came out, any dispute over child custody that had to be resolved in court was likely to be heavily influenced by stereotypes and prejudices. A growing number of such cases reached the courts in the 1970s and 1980s, and in case after case the courts took the custody of children away from a mother or father whose estranged husband or wife raised the parents lesbian or gay identity. Some courts confronting early disputes of this nature articulated a per
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se rule against custody and visitation claims made by gay and lesbian parents, holding that homosexuality was inherently inconsistent with parenthood as a matter of law. 71. The long-standing association of homosexuals with disease was reinforced in the
1980s by the medias initial sensationalist coverage of AIDS, which frequently depicted homosexuals as bearers of a deadly disease threatening others. Fear of contagion prompted a new wave of discrimination against gay people in medical care, housing, and employment. Media coverage and the governments slow response to the disease also reflected and reinforced the enduring conviction that homosexuals stood outside the moral boundaries of the nation. Even after the name AIDS (Acquired Immune Deficiency Syndrome) replaced the moniker GRID (Gay-Related Immune Deficiency), media reports initially minimized the crisis by reassuring Americans that the general public was not at risk, since the disease only affected homosexuals and a handful of other groups, as if gay people were not part of the general public. 72. The media coverage of AIDS and the numerous campaigns against local gay rights
laws had a dramatic effect on public opinion. In 1987, six years after the AIDS crisis unleashed a new wave of fear of homosexuals, public disapproval of homosexuality reached its peak. Polling data showed virtually no change through the 1970s, but the number of people who declared that homosexual relations were always wrong climbed from 73 percent in 1980 to 78 percent in 1987. In the 1980s, gay rights activists secured the enactment of gay rights ordinances in an additional forty cities, counties, and suburbs, including Boston, New York, Chicago, and Atlanta, bringing the national total to eighty. But these victories often were more difficult to achieve than they had been in the 1970s. In New York City, for example, the law passed the city council only after more than a decade of struggle. 73. National religiously-inspired organizations formed in the 1970s and 1980s, such as
the Moral Majority, Focus on the Family, Family Research Council, and Traditional Values Coalition, provided national leadership and coordination to the movement against gay rights and disseminated campaign materials, political strategies, and financial resources to local groups fighting gay rights ordinances.
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VII.
The Persistence of Anti-Gay Discrimination from the 1990s to the Present A. Legal Inequality in State Law 74. The spread of AIDS and the escalation of debate over gay rights at the local level
fueled a growing polarization of the nation over homosexuality in the 1980s and especially the 1990s. By the end of the 1980s, even cities and states that had managed to pass gay rights laws found those laws under attack from an increasingly well-organized and well-funded opposition. Beginning in 1988, and reaching a crescendo from 1992 to 1994, groups in Colorado, Oregon, Maine, and six other states used anti-gay referenda and initiatives to challenge gay rights laws, and built local anti-gay rights organizations. In the twenty-five years after Anita Bryants campaign in Florida, anti-gay activists introduced and campaigned for more than sixty anti-gay rights referenda around the country. Nationwide, gay rights supporters lost almost three-quarters of these contests. In Oregon alone, there were sixteen local anti-gay initiatives in 1993 and another eleven in 1994. Oregons gay rights supporters lost all but one. 75. Following Anita Bryants lead, anti-gay rights activists frequently fomented voter
fear of gay people by reviving demonic stereotypes of homosexuals as perverts who threatened the nations children and moral character. Two videos that repeatedly were screened in churches and on cable television, The Gay Agenda and Gay Rights, Special Rights, juxtaposed discussions of pedophilia with images of gay teachers and gay parents marching with their children in Gay Pride parades. With little subterfuge, the videos depicted homosexuals as child molesters. This message was reinforced by mass mailings and door-to-door distribution of antigay pamphlets, which fostered a climate of hostility and fear during the referenda. 76. In 1992, voters in Colorado passed Amendment Two, which amended the state
constitution to prohibit any municipality or unit of the government from enacting anti-gay discrimination ordinances or policies. This amendment repealed the ordinances already enacted by Denver, Boulder, and Aspen. Moreover, it removed from the political arena any future effort to secure anti-discrimination legislation for gay people. In the face of public antipathy to gay people, represented by the success of this and other referenda overturning non-discrimination laws, several legal groups filed a lawsuit, Romer v. Evans, challenging the constitutionality of
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such constitutional amendments. Once again, the courts protected the rights of the minority against the prejudice of the majority. In 1996, the Supreme Court overturned this state constitutional amendment because it withdrew legal protection against discrimination for gay men, lesbians, and bisexuals, but no others. 77. Although a number of states now have extended basic anti-discrimination
protections to gay men and lesbians, in twenty-nine states, there is no statutory barrier to firing, refusing to hire, or demoting a person in private sector employment solely on the basis of their identity as a gay man or lesbian. In approximately twenty states, there is no statutory or administrative barrier to such discrimination even in state government employment. Similarly, gay men and lesbians remain without statutory protection from discrimination in housing in thirty states. And, despite the critical role played by harassment of gay and lesbian meeting places in enforcing discrimination toward them throughout the twentieth century, gay and lesbian people in twenty-nine states have no statutory protection from discrimination in public accommodations. B. Legal Inequality in Federal Law 78. At the national level, employment discrimination against gay men and lesbians by
federal agencies remained permissible until the late 1990s. Although the outright ban on hiring gay federal employees was lifted in 1975, federal agencies were free to discriminate against gay men and lesbians in hiring and employment decisions until former President Clinton issued a first-of-its-kind executive order forbidding such hiring discrimination in 1998. 79. In 1992, President Bill Clintons proposal to end the armed forces policy banning
lesbians and gay men from serving in the military sparked a firestorm in the first months of his presidency and revealed how deeply divided the nation remained. The public outcry against his plan (calls to Congress ran a hundred to one against lifting the ban) had been stoked by years of local anti-gay organizing. Opposition to the new policy by both the Pentagon leadership and the public led Congress and President Clinton to enact a new law known as Dont Ask, Dont Tell, which allowed for the discharge of gay and lesbian soldiers if they acknowledged their sexual orientation under any circumstances, even in private counseling. Discharge of gay men and lesbians from the military continued after Dont Ask, Dont Tell became law. According to the
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Servicemembers Legal Defense Network, an organization dedicated to assisting military personnel affected by Dont Ask, Dont Tell, more than 14,000 service members have been have been fired under the law since 1993. 80. The repeal of Dont Ask, Dont Tell became effective in 2011. Although the
repeal was an important advance for gay men and lesbians, it did not restore the careers of the thousands of service members who had been discharged under the policy. Nor does it protect gay men and lesbians from the significant discrimination that they continue to face in other domains. After years of effort, gay and lesbian advocates and their allies still have not been able to enact any federal legislation that specifically prohibits discrimination in schools, employment, housing, and public accommodations on the basis of sexual orientation. The Employment NonDiscrimination Act, which would extend express employment protections on the basis of sexual orientation, has been introduced regularly since 1994 (and earlier versions as far back as the 1970s) and has never passed both houses of Congress. 81. Government-sanctioned discrimination against gay men and lesbians still exists
in federal immigration law. Federal law prohibits gay and lesbian Americans from sponsoring their same-sex spouses or registered partners from other countries for immigration benefits. C. Discrimination in Adoption, Custody, and Parenting 82. In the 1990s, lesbian mothers and gay fathers continued to risk their parenting
rights when their former different-sex spouses used their sexual orientation to try to deny them custody or visitation rights in divorces. By the mid-1990s, courts in most states followed rules that required individualized assessment of a parents fitness. But as Julie Shapiros 1996 study of custody cases around the country demonstrated, many courts continued to infuse those individualized assessments with their own prejudice against lesbians and gay men. As she discovered, courts were especially disapproving of lesbians and gay men who were honest about their sexual orientation with their children. In a widely publicized case, a Virginia trial court in 1993 granted a grandmothers petition to take Sharon Bottoms two-year-old son away from her because, as the trial court judge explained, her lesbian conduct is illegal . . . a Class 6 felony in the Commonwealth of Virginia. He went on to declare that it is the opinion of this Court that
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her conduct is immoral and renders her an unfit parent. Virginias Supreme Court upheld the trial courts decision terminating Sharons parental rights despite the presumption favoring her as a natural parent. In doing so, it relied on a wider range of evidence, including the finding that Bottoms lesbianism would subject her child to social condemnation and thus disturb the childs relationships with peers and the community at large. Some courts had used similar reasoning to remove children from the homes of divorced white mothers who had married or lived with black men, a practice ruled unconstitutional by the Supreme Court in 1984. In that case, Palmore v. Sidoti, Chief Justice Warren Burger ruled that private biases may be outside the reach of the law, but the law cannot directly, or indirectly, give them effect. 466 U.S. 429, 433 (1984). But courts in many states continued to give legal effect to the private bias they assumed existed against lesbian and gay parents by preferring heterosexual parents over gay parents, without regard to other factors bearing on the childs best interests. 83. Gay and lesbian parents continue to be forced by some courts to choose between
hiding their gay identities and losing parental rights. As one Texas attorney commented in 1988, unless [a mother] ended her open lesbian relationship I would have little chance of winning a custody trial. According to Clifford J. Rosky, in 2004, after ordering a gay father not to expose his child to his gay lover(s) and/or gay lifestyle, a Tennessee trial court sentenced the father to two days in jail for coming out to the child. 84. State and popular efforts that began in the 1970s to ban lesbians and gay men from
adopting or serving as foster parents continued throughout the 1990s and 2000s. For example, in 2000, Mississippis legislature passed a ban on adoption by same-sex couples that was subsequently signed by the governor. As recently as 2008, Arkansas enacted by popular referendum a ban on foster care and adoption by gay people. 85. Some states enacted laws that bar recognition of out-of-state adoptions by same-
sex couples. For example, in 2004, Oklahoma passed the Adoption Invalidation Law, which stated that Oklahoma shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.
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86.
Some states refuse to allow a biological parents same-sex partner to adopt the
children they raise together. For example, as recently as December 2010, the North Carolina Supreme Court invalidated a second parent adoption by a womans same-sex partner, holding that a non-biological same-sex partner could not be recognized as a legal parent. 87. During the 1980s and 1990s, gay and lesbian parents continued to face significant
obstacles in custody and visitation disputes. Courts continued to demonstrate harsh judgments toward gay and lesbian parents even when a child was conceived with two gay or two lesbian parents intending to raise the child jointly. This was especially evident when the courts had to decide where to place a child when the childs biological mother died and one of her relatives contested the right of her surviving partner, the childs second mother, to continue to raise the child. In a number of cases, courts granted custody to those relatives despite clear evidence that the child wished to remain with her surviving mother. D. Depiction of Gay Men and Lesbians in the Media. 87. With the decline in movie and television censorship and the growing interest in
gay people and issues, there was a significant increase in the coverage of gay issues in the media and in the number of gay characters in movies and on television in the 1990s. By the time the immensely popular Will & Grace premiered on NBC in 1998, gay and lesbian characters were a more regular part of the television landscape. This exposure changed the dominant representation of homosexuals. Gay people usually appeared in the media in the 1950s as shadowy and dangerous figures, but they now appeared as a diverse and familiar group whose all-too-human struggles and pleasures drew the interest of large viewing audiences. 88. It was not only in the media that heterosexuals began to see gay and lesbian
people. Dramatically increasing numbers of lesbians and gay men revealed their homosexuality to their families, friends, neighbors, and co-workers in the 1990s. Polling data suggest the magnitude of the shift. In 1985, only a quarter of Americans reported that a friend, relative, or co-worker had personally told them that they were gay, and more than half believed they did not know anyone gay. Fifteen years later, in 2000, the number of people who knew someone openly gay had tripled to three-quarters of the population. Acceptance of gay men and lesbians and
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support for civil rights protections increased as growing numbers of heterosexuals realized that some of the people they most loved and respected were gay. 89. It is important not to overstate the results of this nationwide coming out
experience, however. In 2000, a significant majority of Americans still expressed moral disapproval of homosexuality. Moreover, support for lesbian and gay civil rights and equality continued to show significant regional differences. Polls showed that public opinion in Massachusetts, Connecticut, and Hawaii was the most tolerant. Support for civil rights also was strong in most other states in New England, in New Jersey and New York, and in other regional clusters: Maryland in the mid-Atlantic, Wisconsin, Minnesota, and Illinois in the upper Midwest, and California, Oregon, and Washington on the West Coast. Anti-gay sentiment was strongest in southern states and in the lower Midwest and plains states. The effects of these regional differences could be seen in regional variations in congressional votes on key gay rights issues, in the treatment of gay couples and individuals by state laws, regulations and court rulings concerning adoption and foster parenting, parental rights, and in the passage of gay rights laws. Only two statesWisconsin in 1982 and Massachusetts in 1989enacted legislation banning anti-gay discrimination before 1990. The number rose to eleven by 2000, but eight of the states were in the Northeast or on the Pacific Coast. The rights of gay people continue to vary enormously across the nation. E. Continued Official, Religious, and Private Condemnation of Homosexuality in the 1990s-2000s 90. Gay people also continue to face discrimination and opprobrium from highly
regarded institutions and officials. The Boy Scouts of America, a federally-chartered organization, continues to insist that homosexual conduct is not morally straight, and refuses to allow gay men into the organization. Boy Scouts of America v. Dale, 530 U.S. 640, 651 (2000). Less than a decade ago, the Chief Justice of the Alabama Supreme Court referred, in a judicial opinion, to homosexual conduct as abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of natures God upon which this Nation and our laws are predicated. Ex Parte H.H., 830 So. 2d 21, 26 (2002) (Moore, C.J., concurring).
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91.
Although the American Psychiatric Association (APA) removed homosexuality
from its list of mental disorders in 1973, dissident psychiatrists and psychologists led by Charles Socarides and Joseph Nicolosi established the National Association for Research and Therapy of Homosexuality (NARTH) in 1992. Disagreeing with both the APA and prevailing professional opinion, NARTH continues to disseminate materials claiming a scientific basis for believing that homosexuality is a psychological disorder and a potentially deadly lifestyle, and that homosexuals can be healed. NARTH also lectures, partners with religious organizations, supports conversion therapy activities, and files amicus briefs in court cases. 92. Anti-gay activists also used the appearance of AIDS in the early 1980s to rekindle
the historic associations between homosexuality, disease, and public danger. F. Anti-Gay Policing and Private Anti-Gay Violence 93. Although police harassment of gay men and lesbians and their meeting places is
not as common as it was some years ago, it continues to be a problem. In 2009, for example, there were highly publicized police raids of gay bars in Atlanta, Georgia, and in Ft. Worth, Texas, where one patron was critically injured. 94. Gay people also continue to face violence motivated by anti-gay bias. A handful
of horrific incidents have drawn widespread media attention. In 1984, in Bangor, Maine, 23year-old Charlie Howard was targeted by three teens due to his sexual orientation. They attacked him and, although he protested that he could not swim, threw him off a bridge into the Kenduskeag Stream, where he drowned. Then, in 1998, Matthew Shepard, a college student in Laramie, Wyoming, was bound, tied to a fence, beaten with a pistol, and left to die because he was gay. Ten years later, Lawrence Larry Fobes King, a 15-year-old student at E.O. Green Junior High School in Oxnard, California, was shot and killed in school by a fellow student because of his sexual orientation. But the problem reaches far beyond these three incidents. For example, in 1994, in Reno, Nevada, a gay businessman, William Metz, was stabbed more than 20 times by his murderer, who reputedly wanted to carve a swastika into his body. The FBI reported 1,260 hate crime incidents based on perceived sexual orientation in 1998 and 1,265 in 2007. In 2008, the year of Lawrence Kings murder, a national coalition of anti-violence social service
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agencies identified twenty-nine murders motivated by the assailants hatred of lesbian, gay, bisexual, or transgender people. The threat of violence continues to lead many gay people to hide their identities or to avoid such commonplace expressions of affection as holding hands with their partners in public. 95. The most vulnerable victims of discrimination are youth. A national study
published in December 2010 found that gay and lesbian teenagers are nearly 40 percent more likely than heterosexual teenagers to be punished by schools, police, and the courts. According to the Gay, Lesbian and Straight Education Networks 2009 National School Climate Survey published in 2010, 61.1 percent of lesbian, gay, bisexual and transgender (LGBT) students surveyed felt unsafe at school because of their sexual orientation; 84.6 percent were verbally harassed because of their sexual orientation; 40.1 percent were physically harassed in the past year because of their sexual orientation; and 18.8 percent were physically assaulted because of their sexual orientation. A recent study sponsored by the New York City Council noted the overrepresentation of LGBT youth among the citys homeless population. And the recent spate of suicides among LGBT youth has highlighted the personal consequences of the ostracism and demonization of gay men and lesbians in American society. 96. One example of the harassment that LGBT youth may face comes was recounted
by Derek Henkle, a high school student in Washoe County School District, Nevada, who sued the District for failing to protect him from anti-gay harassment. Henkle v. Gregory, 150 F. Supp. 2d 1067 (D. Nev. 2001). His suit contended that, on one occasion, students lassoed a rope around his neck in the school parking lot and threatened to kill him by dragging him from their truck. On another occasion, Henkle explained, he was punched by another student while two school security guards stood by. Henkle also reported that one of his principals told him to stop acting like a fag. The case resulted in the largest pre-trial settlement of its kind in the nation at the time. G. Marriage 97. Gay men and lesbians are still prohibited from marrying in the vast majority of
states in this country and the question of marriage rights for same-sex couples remains hotly contested across-the-board. Some of the arguments made in the debate over the right of gay
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couples to marry have echoed those made in earlier debates over the rights of disfavored minority groups. Fifty years ago, for instance, segregationists often claimed that segregation and statutes banning interracial marriage reflected Gods plan for humankind. In the 1960s, a Virginia judge who upheld that states law against interracial marriage in the lower-court proceeding in Loving v. Virginia claimed that Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. 98. Opponents of the right of gay people to marry or adopt children also have drawn on
their reading of scripture to justify their positions. As recently as 2002, when the Supreme Court of Alabama reversed the Alabama Court of Civil Appeals decision to grant a lesbian mother custody of her children, the Chief Justice of the Supreme Court of Alabama used language as strong as that used by the trial judge in Loving v. Virginia in his concurring opinion: Homosexuality is strongly condemned in the common law because it violates both natural and revealed law. The law of the Old Testament enforced this distinction between the genders by stating that [i]f a man lies with a male as he lies with a woman, both of them have committed an abomination. Leviticus 20:13 (King James) . . . The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent. Ex parte H.H. 830 So.2d 21, 33, 35 (Ala. 2002). 99. The vigorous opposition to ending discrimination against lesbian and gay couples in
marriage law is the latest example of this pattern. The marriage issue first reached the national stage in 1993, when Hawaiis Supreme Court ruled that the states ban on marriages between same-sex couples presumptively violated the states equal rights amendment and remanded the lawsuit challenging that ban to a lower court for review. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). By 1996, when a second trial began in the lower court, the prospect of gay couples winning the right to marry had galvanized considerable opposition. Ultimately, while the litigation was pending, Hawaii amended its constitution to give the legislature the authority to limit marriage to different-sex couples, see Haw. Const. art. I, 23, which it did. The Hawaii Supreme Court then dismissed the
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case as moot. Baehr v. Miike, Civ. No. 20371 slip op. at 5-8 (Dec. 9, 1999) (taking notice of constitutional amendment). In addition, under pressure from organizations proclaiming support for traditional family values, the United States Senate passed the Defense of Marriage Act (DOMA) on the day the Hawaii trial began. The Act provided a federal definition of marriage as the union of one man and one woman and declared that no state needed to give full faith and credit to same-sex marriages licensed in another state. It also denied federal benefits to such married couples. Fourteen states passed state-level DOMA statutes that year, and another eleven passed such statutes the following year. In 2000 and 2002, voters in Nevada approved a state constitutional amendment to bar same-sex couples from marriage. In 2004, when Massachusetts became the first state to permit gay couples to marry, a full thirteen states passed constitutional amendments banning such marriages even though twelve of those states already had enacted statutory state DOMAs. 100. Indeed, in each state where gay men and lesbians have achieved the right to marry
either through judicial decision or legislative action there has been significant and organized action by those opposed to marriage rights for same-sex couples to take that right away. California provides a good and especially contentious example. In February 2004, San Francisco mayor Gavin Newsom instructed city officials to issue marriage licenses to same-sex couples. The California Supreme Court ordered the city to stop doing so the following month, and it later nullified the marriages which had been performed. In 2005, and again in 2007, Californias legislature approved bills that would legalize marriage for same-sex couples, but both bills were vetoed by then-Governor Schwarzenegger. In May 2008, the California Supreme Court decided in In re Marriage Cases, 183 P.3d 384 (Cal. 2008) that the privacy and due process provisions of the California Constitution guaranteed the basic civil right of marriage to all individuals and couples, without regard to their sexual orientation. Six months later, on November 4, 2008, California voters approved Proposition 8, adding to the California Constitution the provision Only marriage between a man and a woman is valid or recognized in California. Same-sex couples immediately sued to prevent the enforcement of Proposition 8, but their efforts were rebuffed by the California Supreme Court in Strauss v. Horton, 207 P.3d 48 (Cal. 2009). The court held that the amendment was lawfully enacted, but that it did not invalidate marriages of
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same-sex couples performed in California prior to its effective date. Federal litigation concerning the constitutionality of Proposition 8 is ongoing, with the Ninth Circuit overturning Proposition 8 on equal protection grounds. 101. Opponents of marriage equality who supported Proposition 8 mobilized some of
the most enduring anti-gay stereotypes to heighten public apprehension. Several television commercials aired by the supporters of Proposition 8, for instance, warned that marriage equality might encourage children to become homosexuals themselves. The approval of Californias Proposition 8 along with similar laws and constitutional amendments in forty other states indicates the enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay people and their relationships. 102. Iowa provides another example. In April 2009, a unanimous Iowa Supreme Court
struck down the exclusion of qualified same-sex couples from civil marriage. In response, national organizations opposed to marriage for same-sex couples, such as the National Organization for Marriage and the American Family Association, initiated a campaign for the removal of three of the judges involved in that decision who were subject to retention elections. The campaign was successful, and all three judges were ousted from their position on the bench. Efforts to legislatively repeal marriage for same-sex couples now are underway in Iowa. CONCLUSION Today the civil rights enjoyed by gay and lesbian Americans vary substantially from region to region and are still subject to the vicissitudes of public opinion. Like other minority groups, they often must rely on judicial decisions to secure equal rights. The role of the courts in this dispute is reminiscent of earlier disputes in which courts had to confront public opposition to minority rights. In 1948, when the California Supreme Court became the first state supreme court in the nation to overturn a state law banning interracial marriage, it bucked the tide of white public opposition to such marriages. While the United States Supreme Court overturned the remaining state bans on interracial marriage in 1967 in Loving v. Virginia, it was not until 2001 that more Americans approved of interracial marriage than disapproved of it. History has vindicated the judges who had the courage and foresight to uphold the constitutional rights of
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Exhibit A
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GEORGE
CHAUNCEY
Department of History Yale University P.O. Box 208324 New Haven, CT 06520-8324 (203) 432-1364 george.chauncey@yale.edu
CURRENT POSITION
Professor of History and American Studies; Chair, Department of History, Yale University Co-director, Yale Research Initiative on the History of Sexualities
PREVIOUS POSITIONS
Professor of History, University of Chicago, 1997-2006. Visiting Professor of History, cole Normale Suprieure, Paris, May 2001. Associate Professor of History, University of Chicago, 1995-97. Assistant Professor of History, University of Chicago, 1991-95. Assistant Professor of History, New York University, 1990-91. Postdoctoral Fellow, Rutgers Center for Historical Analysis, 1989-90.
DEGREES
Ph.D., Yale University, 1989. M.Phil., Yale University, 1983. M.A., Yale University, 1981. B.A., Yale University, magna cum laude, 1977.
AWARDS
Gay New York was awarded the: Frederick Jackson Turner Award for the best first book on any topic in American history in 1994 Merle Curti Award for the best book in American social history in 1994 or 1995 (both from the Organization of American Historians), Los Angeles Times Book Prize for History (1994), Lambda Literary Award for Gay Mens Studies (1994), John Boswell Award of the Committee on Lesbian and Gay History of the American Historical Association (1995). Named a New York Times Notable Book of 1994. Village Voice List: one of the Best Books of 1994. Lingua Franca List: one of the two best academic books of the 1990s. Subject of a panel discussion, Charting Chaunceys Gay Male World: Reflections on the Tenth Anniversary of Gay New York, at the 2004 meeting of the OAH. As a dissertation, Gay New York received the following prizes from Yale University: George Washington Egleston Prize in American history (1990), John Addison Porter Prize, Yales highest university-wide dissertation award (1990), Andrew Gaylord Bourne Gold Medal, the Yale History Departments triennial award for a pioneering work of scholarship (1992). Other Honors: New York Academy of History, elected to membership in 2007. Society of American Historians, elected to membership in 2005. Community Service Award from the Lesbian Community Cancer Project, Chicago, 2004.
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George Chauncey, page 2
Freedom Award from Equality Illinois, the states largest gay rights group, 2001. First James Brudner Memorial Award in Lesbian and Gay Studies, Yale University, 2000. Centennial Historian of the City of New York, 1998. Sprague-Todes Literary Award, Gerber-Hart Library, 1997.
BOOKS AND EDITED COLLECTIONS

Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 Basic Books, 1994; paperback, 1995. British edition published by HarperCollins/U.K., 1995. French translation by Didier Eribon published by Fayard, 2003. Chapters reprinted in: The Columbia Reader on Lesbians and Gay Men in Media, Society, and Politics, eds. Larry Gross and James C. Woods (Columbia, 1999) The Gender and Consumer Culture Reader, ed. Jennifer Scanlon (NYU, 2000) Major Problems in the History of American Sexuality: Documents and Essays, ed. Kathy Peiss (Heath, 2001) Sexualities in History, eds. Kim M. Phillips and Barry Reay (Routledge, 2002). American Queer: Now and Then, ed. David Shneer and Caryn Aviv (Paradigm, 2006). The Strange Career of the Closet: Gay Culture, Consciousness, and Politics from the Second World War to the Gay Liberation Era (in progress, to be published by Basic Books). Why Marriage? The History Shaping Todays Debate Over Gay Equality (Basic Books, 2004; paperback, 2005). Japanese translation published by Akashi Shoten, 2006. Hidden From History: Reclaiming the Gay and Lesbian Past (Co-editor, with Martin Duberman and Martha Vicinus; a collection of thirty essays published by New American Library in 1989). Turkish translation published by Siyasal, 2002. Thinking Sexuality Transnationally (= special issue of GLQ: A Journal of Lesbian and Gay Studies, 5:4 (1999), co-editor with Elizabeth Povinelli). Gender Histories and Heresies (= special issue of Radical History Review, 52 (1992), co-editor with Barbara Melosh).
ARTICLES IN SCHOLARLY JOURNALS AND COLLECTIONS

The Trouble with Shame, in Gay Shame, ed. David Halperin and Valerie Traub (University of Chicago Press, 2010). How History Mattered: Sodomy Law and Marriage Reform in the United States, Public Culture 20:1 (2008): 27-38. Homosexuality, Family, and Society: Historical Perspectives from the United States, in Homosexuality and the Law: Essays and Materials from an International Workshop on Sexuality, Policy, and Law (Guangxi Normal University Press, 2007 [in Chinese and English]), 12-18, 115-23. Aprs Stonewall, le dplacement de la frontire entre le soi public et le soi priv, Histoire et Socits: revue europenne dhistoire sociale 3 (2002): 45-59. Skapets historie, Kvinneforskning 24 (2000): 56-71 [The History of the Closet, in the Norwegian journal Womens Studies]. Introduction: Thinking Sexuality Transnationally, with Elizabeth A. Povinelli, in Povinelli and Chauncey, eds., Thinking Sexuality Transnationally, special issue of GLQ: A Journal of Lesbian and Gay Studies 5:4 (Autumn 1999): 439-49.
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Gay New York, Actes de la recherche en sciences sociales 125 (December 1998): 9-14. [This article and the rest of the special issue on Homosexualits are introduced by ric Fassin, Politiques de lhistoire: Gay New York et lhistoriographie homosexuelle aux tas-Unis, 3-9.] Genres, identits sexuelles et conscience homosexuelle dans lAmrique du xxe sicle, in Les tudes gay et lesbiennes, ed. Didier Eribon (Paris: ditions du Centre Pompidou, 1998), 97-108. Sex, Gender, and Sexuality: Female Prostitution and Male Homosexuality in Early Twentieth-Century America, GRAAT (Groupes de Recherches Anglo-Americaines de Tours) 17 (1997): 39-54. The Queer History and Politics of Lesbian and Gay Studies, Queer Frontiers: Millennial Geographies, Genders, and Generations, ed. Joseph Boone, et al. (University of Wisconsin Press, 2000), 298-315. From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance, Salmagundi, no. 58-59 (Fall 1982-Winter 1983): 114-46. Reprinted in two collections: Homosexualidad: literatura y politica (Madrid, 1982), in Spanish Passion and Power: Sexuality in History, ed. Kathy Peiss and Christina Simmons (Temple University Press, 1989). Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era, Journal of Social History 19:2 (1985): 189-211. Reprinted in ten collections: Onder Mannen, Onder Vrouwen (Amsterdam, 1984), in Dutch Sodomites, Invertis, Homosexuels: Perspectives Historiques (Paris, 1994), in French Expanding the Past: Essays from the Journal of Social History (New York University Press, 1988) Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989) Studies in Homosexuality: History of Homosexuality in Europe and America (Garland, 1992) Gender in American History Since 1890 (Routledge, 1993) Que(e)rying Religious Studies (Continuum, 1997) Same Sex: Debating the Ethics, Culture, and Science of Homosexuality (Rowman & Littlefield, 1997) American Sexual Histories (Blackwell, 2001) Sexual Borderlands: Constructing An American Sexual Past (Ohio University Press, 2003) Privacy Could Only Be Had in Public: Gay Uses of the Streets, Stud: Architectures of Masculinity, ed. Joel Sanders (Princeton Architecture Press, 1996), 224-61. The Postwar Sex Crime Panic, True Stories from the American Past, ed. William Graebner (McGraw-Hill, 1993), 160-78. Long-Haired Men and Short-Haired Women: Building a Gay World in the Heart of Bohemia, Greenwich Village: Culture and Counterculture, ed. Rick Beard and Leslie Berlowitz (Rutgers University Press, 1993), 151-64. The Policed: Gay Mens Strategies of Everyday Resistance, Inventing Times Square: Commerce and Culture at the Crossroads of the World, 1880-1939, ed. William R. Taylor (Russell Sage, 1991), 315-28. Reprinted in Creating A Place For Ourselves: Lesbian, Gay`, and Bisexual Community Histories, ed. Brett Beemyn (Routledge, 1997). The National Panic Over Sex Crimes and the Construction of Cold War Sexual Ideology, 1947-1953, Sociologische Gids [Amsterdam] 32 (1985): 371-93. [In Dutch; title translated.] The Locus of Reproduction: Womens Labour in the Zambian Copperbelt, 1927-1953, Journal of Southern African Studies 7 (1981): 135-64.
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SELECTED SHORT ESSAYS, REVIEWS, INTERVIEWS, AND ENCYCLOPEDIA ENTRIES

Last Ban Standing, New York Times, December 21, 2010, A35. Gay at Yale: How Things Changed, Yale Alumni Magazine (July/August 2009), 32-43. George Chauncey: de lautre ct du placard, interview conducted by Philippe Mangeot for Vacarme, no. 26 (Winter 2004), 4-12. Dune march lautre, interview conducted by Sbastien Chauvin for Ttu (June 2004), 86-87. Review of James McCourt, Queer Street: Rise and Fall of an American Culture, 1947-1985, New York Times, December 31, 2003. Etats Unis and New York, in Dictionnaire Des Cultures Gays Et Lesbiennes, ed. Didier Eribon, Arnaud Lerch, Frederic Haboury (Larousee, 2003). Amici Curiae Brief of Professors of History to the Supreme Court in the case of Lawrence v. Texas (organizer and primary author; co-signed by nine other historians). Sections reprinted as Educating the Court: In Changing the Law of the Land, Six Justices Turned to Its History, Word for Word column, Week in Review, New York Times, July 20, 2003, and discussed in What Gay Studies Taught the Court, Washington Post, July 13, 2003. Reprinted in full, with my introduction, in GLQ: A Journal of Lesbian and Gay Studies 10.3 (2004): 509-38. Introduction, Homosexuality in the City: A Century of Research at the University of Chicago (University of Chicago Library, 2000). Who is Welcome at Ellis Island? AIDS Activism and the Expanding National Community, Honoring With Pride: An Evening Benefit for the American Foundation for AIDS Research on Ellis Island, program book, June 21, 2000. The Ridicule of Lesbian and Gay Studies Threatens All Academic Inquiry, back page Point of View column, Chronicle of Higher Education, July 3, 1998. Review of Charles Kaiser, The Gay Metropolis, 1940-1996, New York Times , December 30, 1997. Review of Daniel Harris, The Rise and Fall of Gay Culture, New York Times Book Review, September 7, 1997. The Joy of No Sex, part of a Talk-of-the-Town roundtable on the Heavens Gate mass suicide, The New Yorker, April 14, 1997, 31-32. The Present as History, Out Magazine, February 1997, 69. Tea and Sympathy, Past Imperfect: History According to Hollywood, ed. Mark Carnes (Henry Holt, 1995), 258-61. Gay male community, in The Encyclopedia of New York City, ed. Kenneth Jackson (Yale, 1995). A Gay World, Vibrant and Forgotten, New York Times Op-Ed Page, Sunday, June 26, 1994. Queer Old New York: A Historic Walking Tour, Village Voice, June 21, 1994, 25-27. Homosexuality, The Encyclopedia of Social History, ed. Peter N. Stearns (Garland, 1993), 323-25. Time on Two Crosses: An Interview with Bayard Rustin (with Lisa Kennedy), Village Voice, June 30, 1987, 27-29. Gay Male Society in the Jazz Age, Village Voice, July 1, 1986, 29-34.
FELLOWSHIP AWARDS
New York Public Library Dorothy and Lewis B. Cullman Center for Scholars and Writers Residential Fellowship, 2004-5. Princeton University Shelby Cullom Davis Center for Historical Studies Fellowship, 2004-5 [declined]. Institute for Advanced Study School of Social Science Membership, 2004-5 [declined].
Appendix Page 250
Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 2002-3. Social Science Research Council Sexuality Research Fellowship, Faculty Advisor Award, 1999-2000. Fellow, Institute for Advanced Study, Indiana University, September 1998. Social Science Research Council Sexuality Research Fellowship, two Faculty Advisor Awards, 1997-98. John Simon Guggenheim Memorial Foundation Fellowship, 1996-97. National Humanities Center Rockefeller Fellowship and Residency, 1996-97. American Council of Learned Societies Fellowship for Recent Recipients of the Ph.D., 1992-93. Cornell University Society for the Humanities Postdoctoral Fellowship, 1991-92 [declined in order to accept new position at Chicago]. Rutgers Center for Historical Analysis Postdoctoral Fellowship, 1989-90. New York University School of Law Samuel Golieb Fellowship in Legal History, 1987-88. Mrs. G. Whiting Foundation Fellowship in the Humanities, 1986-87. Woodrow Wilson Foundation Research Grant in Women's Studies, 1984. Bush Center in Child Development and Social Policy History Fellowship, 1983-84. Yale College Prize Teaching Fellowship, 1982-83. Danforth Foundation Graduate Fellowship, 1979-82. John Courtney Murray Travelling Fellowship, 1977-78 [supported research in Zambia].
PRIMARY INVESTIGATOR, INSTITUTIONAL GRANTS

Ford Foundation, grant in support of The Future of the Queer Past: A Transnational History Conference, University of Chicago, 2000. Rockefeller Foundation, grant in support of The Future of the Queer Past: A Transnational History Conference, University of Chicago, 2000. Illinois Humanities Council, grant in support of The Future of the Queer Past: A Transnational History Conference, University of Chicago, 2000. Mellon Foundation, grant in support of the Sawyer Seminar on Sexual Identities and Identity Politics in Transnational Perspective, University of Chicago, 1997-98.
NAMED LECTURES, PLENARY LECTURES, AND SELECTED FOREIGN LECTURES

From Sodomy Laws to Marriage Amendments: The History Shaping Todays Debate over LGBT Equality, keynote address at Toward a More Perfect Union: Civil Rights, Human Rights, and Creating a New Age of Social Responsibility, Benjamin Hooks Conference for Social Change, University of Memphis, April 2012 Single Men, Urban Decline, and the Cultural Logic of Postwar American Antigay Politics, Rutgers Center for Historical Analysis Twentieth Anniversary Celebration Conference, Rutgers University, May 2010 Homosexuality and the Postwar City, Center for Interdisciplinary Research in the Arts, University of Manchester, England, March 2009. Homosexuality and the Postwar City, keynote lecture, Australia-New Zealand American Studies Association, Sydney, July 2008. From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics, Provosts Lecture, University of Maryland, College Park, February 2008. Revisiting the Postwar Politics of Sexuality, keynote lecture (with Joanne Meyerowitz), New England American Studies Association, Brown University, November 2007. From Sodomy Laws to Marriage Amendments: A History of Sexual Identity/Politics, Presidential Lecture, Columbia University, April 2007. Why Come Out of the Closet? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, Vern and Bonnie Bullough Lecture in the History of Sexuality and Gender, University of Utah, April 2007.
Appendix Page 251
The Future of Sexuality Studies, at the plenary session of the Sexuality Research Fellowship Programs Capstone Conference (commemorating the conclusion of a ten-year-long fellowship program funded by the Ford Foundation and administered by the Social Science Research Council), Tamayo Resort, New Mexico, April 2006. Homosexuality, State, and Society: Historical Perspectives from the United States, at the symposium Diversity, Equality and Harmony: International Workshop on Sexuality, Policy and Law, School of Social Development and Public Policy, Fudan University, Shanghai, China, January 2006. How History Mattered: Sodomy Law and Marriage Reform in the United States, at the conference Partisan Histories: Conflicted Pasts and Public Life, The Australian National University, Canberra, September 2005. From Sodomy Laws to Marriage Amendments: Sexual Identity/Politics Since 1900, Kaplan Lecture, University of Pennsylvania, March 2004. Reflections on Gay New York and Beyond, at the symposium Histoire sexuelle et histoire sociale, loccasion de la traduction franaise de Gay New York 1890-1940 de George Chauncey, cole normale suprieure, Paris, December 2003. Civil Rights, Gay Rights, Human Rights, dual keynote address given with Mrs. Coretta Scott King at the beginning of Outgiving, a conference on gay philanthropy organized by the Gill Foundation, Atlanta, September 2003. Drag Balls as Society Balls: Phil Blacks Funmakers Ball and the Changing Rituals of Belonging in African American Society, 1940-1973, Mark Ouderkirk Memorial Lecture, Museum of the City of New York, September 2003. A Different West Side Story: Latino Gay Culture and Antigay Politics in Postwar New York City, Nicholas Papadopoulos Endowed Lecture in Lesbian and Gay Studies, University of California, San Diego, February 2003. Why Come Out of the Closet? Secrecy, Authenticity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, The Rahv, Hughes, Manuel and Marcuse Memorial Lecture, Brandeis University, February 2003. Sexual Identity in the Twentieth Century, Womens Breakfast, American Historical Association, January 2003. Sexuality, Intimacy, and History, Commencement Address, University of Chicago, June 2002. Why Come Out of the Closet? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, at Histoire de la sexualit: changes transatlantiques, at the cole normale suprieure, Paris, May 2001. The History of the Closet, Inaugural George Mosse Memorial Lecture, University of Wisconsin, April 2001. The History of the Closet, at the Sexuality 2000 Symposium, Oslo, Norway, August 2000. Why Come Out of the Closet? Authenticity, Post/Modernity, and the Shifting Boundaries of the Public and Private Self in the 1950s and 60s, Inaugural Brudner Prize Lecture, Yale University, February 2000. Rethinking the History of Homosexuality and the Category of the Homosexual and A Research Program for Lesbian and Gay Studies, at the First Swedish Conference on Research on Homosexuality and Lesbianism, University of Gothenburg, Sweden, November 1995. The National Panic over Sex Crimes in Cold War America, Inaugural Mark Ouderkirk Memorial Lecture, Museum of the City of New York, June 1995. Gay Studies on Trial: Queer History/Politics/Studies, at the Fifth National Graduate Student Conference on Lesbian and Gay Studies, University of Southern California, Los Angeles, March 1995.
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The Kinsey Scale and the Consolidation of the Hetero-Homosexual Binarism in the Twentieth Century, at the Second International Conference on the History of Marriage and the Family, Carleton University, Ottawa, Canada, 1994. European Sexual Cultures in the Immigrant Neighborhoods of New York City, 1890-1940, at the International Conference on European Sexual Cultures, University of Amsterdam, The Netherlands, June 1992. Publish and Perish? Lesbian/Gay Studies, Publishing, and the Academy, at the plenary session on New Directions in Scholarship, Association of American University Presses, Chicago, June 1992.
OTHER INVITED LECTURES SINCE 1989

Chicago History Museum, April 14, 2011. Columbia University, February 19, 2011. Rutgers University, May 7, 2010. University of Antwerp, Belgium, March 20, 2010 University of Amsterdam, March 15, 2010 Middlebury College, October 17, 2008. The Rothmere American Institute, Oxford University, April 30, 2008. University of Texas, Austin, April 11, 2008. University of Amsterdam, The Netherlands, May 3, 2006. Facultad de Filosofa y Letras, University of Buenos Aires, Argentina, March 20, 2006. Kansas State University, March 10, 2006. University of Miami, February 27, 2006. DePaul University, Chicago, February 20, 2006. Harvard University, February 3, 2006. University of Massachusetts, Boston, February 3, 2006. Boston University, February 2, 2006. Yale University, January 17, 2006. University of Melbourne, Australia, September 21, 2005. University of Sydney, Australia, September 7, 2005. New York University, April 19, 2005. Chicago Historical Society, May 27, 2004. University of North Texas, April 17, 2004. University of Maryland, February 23, 2004. University of California, Berkeley, September 25, 2003. University of California, Los Angeles, February 20, 2003. University of Minnesota, February 15, 2002. Texas A&M University, April 25, 2001. William and Mary College, April 18, 2001. Northwestern University, April 5, 2001. Harvard University, November 16, 2000. Trinity College, November 15, 2000. University of Michigan, April 15, 2000. University of Connecticut, Storrs, February 17, 2000. Hobart and William Smith Colleges, February 13, 2000. Chicago Humanities Festival, November 8, 1998. Indiana University, September 17, 1998. University of Minnesota, May 22, 1998. Institute for the Humanities, University of Illinois, Chicago, February 13, 1998. Pompidou Center, Paris, June 27, 1997. Colby College, April 10, 1997. Cornell University, April 8, 1997. University of California, Los Angeles, February 5, 1997. University of California, Irvine, February 3-4, 1997. Northwestern University, December 6, 1996.
Appendix Page 253
Yale University, American Studies and History Departments, November 7, 1996. Yale School of Architecture Urbanism Series, November 7, 1996. University of Copenhagen, Denmark, November 3, 1995. National Danish Lesbian and Gay Organization, Copenhagen, November 3, 1995. University of Illinois, Champaign-Urbana, MillerComm Lectures, October 23, 24, 1995. University of Notre Dame, September 9, 10, 1995. Princeton University, March 9, 1995. Chicago Teachers Institute, December 7, 1994. New York Academy of Medicine, New York City, November 10, 1994. University of Chicago New York City Club, Distinguished Faculty Lecture Series, October 13, 1994. Northwestern University, May 17, 1994. New York Public Library, Celeste Bartos Forum, May 3, 1994. [This lecture was later broadcast on public television.] New York University, April 29, 1994. Rutgers University, December 6, 1993. Newberry Library Social History Seminar, June 8, 1993. University of Wisconsin, Milwaukee, Center for Twentieth Century Studies, March 25, 1993. Urban History Seminar of the Chicago Historical Society, January 12, 1993. University of Illinois at Chicago, November 11, 1992. New York City Lesbian and Gay Community Services Center, Gregory Kolovakas Memorial Lecture Series, November 19, 1992. University of Oregon, April 24, 1992. Cornell University, February 24, 1992. University of Chicago Centennial Symposium, Canons in the Age of Mass Culture, February 10, 1992. Northwestern University, May 30, 1991. Johns Hopkins University, March 28, 1991. Sarah Lawrence College, November 27, 1990. Carleton College, April 5, 1990. Museum of the City of New York, November 5, 1989. Rutgers Center for Historical Analysis, October 3, 1989. Rutgers University, Camden, April 6, 1989.
Appendix Page 254
Exhibit B
Appendix Page 255
BIBLIOGRAPHY Across the USA: News From Every State, USA Today, Jul. 27, 1994 at 10a. Allan Brub, Coming Out Under Fire: The History of Gay Men and Women in World War II (New York: Free Press, 1992). Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010). Nan Alamilla Boyd, Wide Open Town: A History of Queer San Francisco (Berkeley: University of California Press, 2003). Robbie Brown, Antipathy Toward Obama Seen as Helping Arkansas Limit Adoption, The New York Times, Nov. 8, 2008 at A26. Rob Burnes, Homosexual Law Unchanged, The Billings Gazette, Sept. 3, 1970, at 6. California Safe Schools Coalition, et al., Safe Place to Learn: Consequences of Harassment Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools Safer (2004). Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009). David L. Chambers and Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 Family Law Quarterly, 1999-2000. George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (New York: Basic Books, 1994). George Chauncey, Why Marriage? The History Shaping Todays Debate over Gay Equality (New York: Basic Books, 2004). George Chauncey, Martin Duberman, and Martha Vicinus, eds., Hidden From History: Reclaiming the Gay and Lesbian Past (NAL, 1989). George Chauncey, From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance, 58-59 Salmagundi 114-46 (Fall 1982-Winter 1983). George Chauncey, Christian Brotherhood or Sexual Perversion? Homosexual Identities and the Construction of Sexual Boundaries in the World War One Era, 19 Journal of Social History 189-211 (1985). George Chauncey, The Postwar Sex Crime Panic, in True Stories from the American Past (William Graebner edit., McGraw-Hill: 1993), pp.160-78.
Appendix Page 256
Roger Clawson, Preacher Raises Hell Over Homosexuals, The Billings Gazette, Sep. 2, 1970, at 1. Dudley Clendinin and Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America (New York: Simon & Schuster, 1999). Councilman Calls for Closing Night Club as Public Nuisance, The Hartford Courant, Nov. 16, 1969 at 42. John DEmilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority, 19401970 (Chicago: University of Chicago Press, 1981). Empire State Coalition of Youth and Family Services, A Count of Homeless Youth in New York City (Empire State Coalition, 2008). Tanya Erzen, Straight to Jesus: Sexual and Christian Conversions in the Ex-Gay Movement (Berkeley: University of California Press, 2006). Lillian Faderman and Stuart Timmons, Gay L.A.: A History of Sexual Outlaws, Power Politics, and Lipstick Lesbians (New York: Basic Books, 2006). Estelle B. Freedman, Uncontrolled Desires: The Response to the Sexual Psychopath, 1920 1960 74 Journal of American History 83106 (1987). Gay, Lesbian and Straight Education Network, The 2009 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nations Schools, (GLSEN, 2010). General Accounting Office, Military Personnel: Financial Costs and Loss of Critical Skills Due to DODs Homosexual Conduct Policy Cannot be Completely Estimated (2005). Richard Godbeer, Sexual Revolution in Early America (Baltimore: Johns Hopkins, 2002). Henkle v. Gregory, 150 F. Supp. 2d 1067 (D. Nev. 2001). The History Project, Improper Bostonians (Boston: Beacon Press, 1998). In re Benites, 37 Nev. 145 (1914). Jail Terms Urged for Offenders, The Hartford Courant, Sept. 21, 1957 at 3. Ron Jenkins, Henry signs measure on gay adoptions, The Associated Press State & Local Wire, May 4, 2004. David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004). Mark D. Jordan, The Invention of Sodomy in Christian Theology (Chicago: University of Chicago Press, 1997).
Appendix Page 257
Jonathan Ned Katz, Gay/Lesbian Almanac: A New Documentary (New York: Harper & Row, 1983). Lambda Legal, Groundbreaking Legal Settlement is First to Recognize Constitutional Right of Gay and Lesbian Students to be Out at School & Protected From Harassment, http://www.lambdalegal.org/news/ca_20020828_groundbreaking-legal-settlement-firstto-recognize, accessed June 27, 2012. Ruediger Lautmann, The Pink Triangle: Homosexuals as Enemies of the State, in Michael Berenbaum and Abraham J. Peck, eds., The Holocaust and History (Indiana, 2002). Eric Marcus, Making Gay History: The Half-Century Fight for Lesbian and Gay Equal Rights (2002). Martin Meeker, Behind the Mask of Respectability: Reconsidering the Mattachine Society and Male Homophile Practice, 1950s and 1960s 10 Journal of the History of Sexuality 78 116 (2001). National Association for Research and Therapy of Homosexuality, NARTH Position Statements, http://narth.com/menus/positionstatements.html, accessed June 24, 2012. National Association for Research and Therapy of Homosexuality, The Three Myths About Homosexuality, http://narth.com/menus/myths.html, accessed June 24, 2012. The National Coalition of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual, and Transgender People in the United States, 2008 (National Coalition, 2009). Natl Gay & Lesbian Task Force, State Laws Prohibiting Recognition of Same-Sex Relationships (2009), available at http://www.thetaskforce.org/downloads/reports/ issue_maps/samesex_relationships_7_09.pdf. Pew Forum on Religion & Public Life, U.S. Religious Landscape Survey, February 2008. Richard Plant, The Pink Triangle: The Nazi War Against Homosexuals (New York: Holt, 1986). Question 2 Campaign Material, available at http://outhistory.org/wiki/File:Pro2mailer2002.jpg, 2002. Amy Ronner, Bottoms v. Bottoms: The Lesbian Mother and the Judicial Perpetuation of Damaging Stereotypes, 7 Yale J. L. & Feminism, 1995. Clifford J. Rosky, Like Father Like Son: Homosexuality, Parenthood and the Gender of Homophobia, 20 Yale J .L. & Feminism, 2009. Teemu Ruskola, Minor Disregard: The Legal Construction of the Fantasy that Gay and Lesbian Youth Do Not Exist, 8 Yale J. L. & Feminism 269, 1996.
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Servicemembers Legal Defense Network, About Dont Ask, Dont Tell (2011). Servicemembers Legal Defense Network, About the Servicemembers Legal Defense Network (2011). Julie Shapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children, 71 Indiana L. J. 71 623-627, 1996. Stan Simon, Homosexual Fights Driving Ban, The Hartford Courant, Nov. 6, 1970 at 17. US Department of Justice, Federal Bureau of Investigation, Hate Crime Statistics 1998; id, Hate Crime Statistics 2007. C. Todd White, Pre-Gay L.A.: A Social History of the Movement for Homosexual Rights (Urbana: University of Illinois Press, 2009). William H. Whitmore, A Bibliographical Sketch of the Laws of the Massachusetts Colony from 1630 to 1686 (Boston: Rockwell and Churchill, 1890).
Appendix Page 259
Exhibit 3
Case Case 2:12-cv-00578-RCJ-PAL 2:13-cv-00217-RJS Document Document 85-4 86-2Filed Filed 11/22/13 09/10/12Page Page 2 of 3 of 43 184
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK, et al., Plaintiffs, v. BRIAN SANDOVAL, et al., Defendants, and COALITION FOR THE PROTECTION OF MARRIAGE, Defendant-Intervenor. No. 2:12-CV-00578-RCJ-PAL DECLARATION OF NANCY F. COTT, PH.D. IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
27 28
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.
I, Nancy F. Cott, Ph.D., hereby declare and state as follows: QUALIFICATIONS AND ENGAGEMENT 1. I am presently the Jonathan Trumbull Professor of American History at Harvard
University. In 1969, I received a masters degree in History of American Civilization from Brandeis University. In 1974, I received a Ph.D. degree in History of American Civilization from Brandeis University. Since that time, I have researched and taught United States history. I taught for twenty-six years at Yale University, where I gained the highest honor of a Sterling Professorship, and in 2002, I joined the faculty at Harvard University. 2. I teach graduate students and undergraduates in the area of American social,
cultural, and political history, including history of marriage, the family, and gender roles. I also am the Pforzheimer Family Foundation Director of the Schlesinger Library on the History of Women in America, Radcliffe Institute for Advanced Study. 3. I have received numerous fellowships, honors and grants, from a John Simon
Guggenheim Memorial Foundation Fellowship in 1985 and National Endowment for the Humanities Fellowship in 1993, to a Fulbright Lectureship in Japan in 2001 and election to the American Academy of Arts & Sciences in 2008. 4. I am the author or editor of eight published books, including Public Vows: A
History of Marriage and the Nation (Harvard Univ. Press, 2000), the subject of which is marriage as a public institution in the United States. I also have published over twenty scholarly articles, including several discussing the history of marriage in the United States. I have delivered scores of academic lectures and papers over the past thirty-five years on a variety of topics, including the history of marriage in the United States. I also have served on many advisory and editorial boards of academic journals. My background, experience, and list of publications are summarized in my curriculum vitae, which is attached as Exhibit A to this Declaration. 5. I spent over a decade researching the history of marriage in the United States,
especially its legal attributes, obligations, and social meaning, before and while writing my book Public Vows: A History of Marriage and the Nation. The claims and evidence in this Declaration come principally from the research for that book and are more fully documented there and in an
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
article based on that research, Marriage and Womens Citizenship, which was published in American Historical Review in 1998. The numerous historical sources, legal cases, and government documents that I studied and analyzed while researching and writing the book, as well as the other scholars work that I consulted, are cited in my published footnotes in the book and article. In addition, I have supplemented my past research with more recent reading and research on matters referenced in this Declaration. In preparing to write this Declaration, I reviewed the Complaint in this case, Public Vows, Marriage and Womens Citizenship and certain of the sources cited therein, and Nevada legal and historical records and other materials listed in the attached Exhibit B. I have also relied on my years of experience in this field, as set out in my curriculum vitae, and on the materials listed therein. 6. I have been retained by Plaintiffs counsel in connection with the above-referenced
litigation. I am being compensated for this effort at a flat rate of $1,000.00 for reports, $250.00 per hour for deposition testimony, and $1,000.00 per day for trial testimony. I also will be reimbursed for expenses in the event that I have to travel in connection with my services. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. My opinions expressed herein are my true opinions as an expert in the history of marriage. I have actual knowledge of the matters stated in this Declaration and could and would so testify if called as a witness. 7. I reserve the right to supplement or amend this Declaration in consequence of
documents or other discovery that any party, or any entity or person (including other expert witnesses), has not yet produced or any witness testimony that has not yet been given. 8. In the past four years, I have submitted an expert report, been deposed as an
expert, or testified as an expert at trial in Dragovich v. U.S. Dept of the Treasury, 4:10-cv-01564CW (N.D. Cal.); Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D. Cal.), Windsor v. U.S., 1:10-cv08435-BSJ-JCF (S.D.N.Y.), Pedersen v. Office of Personnel Management, 3:10-cv-01750-VLB (D. Conn.), Perry v. Schwarzenegger, 3:09-cv-2292-JW (N.D. Cal.), and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, 1:09-cv-11156-JLT (D. Mass.).
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II.
SUMMARY OF FACTS AND OPINION 9. I have been asked for my expert opinion concerning the United States history of
marriage, including the purpose, meaning, and evolution of marriage in the U.S. My conclusions, based on my research and as set forth more fully in Section III herein, are as follows: Marriage is not a fixed institution. In the United States, marriage has changed dramatically over time. It inherited and retained some essential characteristics from the English Common Law, including its basis in free consent of two parties, but in many other respects, marriage has changed significantly to meet changing social and ethical needs. In the United States, marriage is both public and private. It is a public institution in that it is constituted by the state; its form and requirements are created by public authority, and it operates as systematic public sanction, bringing rights and benefits along with duties. At the same time, marriage signifies a freely-chosen relationship between two individuals and founds a private realm of individual liberty and familial intimacy. Marriage has a unique meaning. Nothing has the same meaning, significance, obligations, rights and benefits as marriage except for marriage itself. Marriage in all the states of the United States has always been a civil matter, under the control of legislative and judicial authorities, rather than religious authorities. Religious authorities were permitted to solemnize marriages by acting as deputies of the civil authorities. They were never permitted to determine the qualifications for entering or leaving a marriage that would be valid at law, although they were free to determine what qualifications they would accept for religious validation. Marriage in the United States has been defined and controlled at the state level, historically, in accord with premises established by the U.S. Constitution. Marriage has been shaped by legislators and judges in the various states to reflect and adjust to the changing needs of society and culture over time. Societal change over the centuries has produced new features in marriage that are commonly
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III.
accepted today although they would have been unthinkable at the founding of the United States. Marriage has been a successful civil institution precisely because it has been flexible, not static. States have varied from one another in defining the basic elements of marriage, including whether or not ceremonies are required for validation, how spousal roles shall be defined and enforced, what other race may marry a white person, how marriage may be dissolved, and other issues. States variance today on validating marriage for couples of the same sex resembles and is parallel to the history of states divergences with respect to many other dimensions of marriage validity. Heated controversy often surrounded changes to the features of marriage on which state laws diverged in the past. The controversies today focusing on marriage between couples of the same sex, and state variance on the matter, resemble these past disagreements. The exclusion from marriage of same-sex couples stands at odds with the direction of historical change in marriage in the United States. Contemporary public policy assumes that marriage is a public good. Excluding some citizens from the power to marry, or marking some as unfit to be part of the national family on the basis of their marriage choice, is not in keeping with public policy regarding either the benefit of marriage or the rights of citizens. BASIS AND REASONS FOR OPINIONS A. 10. Significance of Marriage in American Society. Marriage is a capacious and complex institution a paradoxical hybrid, combining
public and private, status and contract, governance and liberty. It has political, social, economic, legal, personal, and emotional contents, and meanings and consequences that operate in more than one arena. The idea that marriage is the happy ending, the marker of a relationships intimacy, a rite of passage signifying adult belonging, and the definitive expression of love, commitment, and family, is deeply ingrained in our society. It is reflected in and perpetuated through law, custom, literature, and even folk tales.
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11.
Since marriage is authorized by civil authorities in all of the United States, there
has always been a close relation between marriage and government. It is most visible in that each state sets forth the requirements for marriage eligibility, issuance of marriage licenses, solemnizing and dissolving marriages. State and federal governments special recognition of marriage appears in many forms, including the areas of immigration and citizenship, tax policy, and property rights. Each state affords myriad benefits, responsibilities, and rights to spouses. And, as the General Accounting Office reported in 1996, the corpus of federal law mentions more than 1,000 kinds of benefits, responsibilities, and rights connected with marriage. 12. Marriage thus is a bundle of rights, obligations, and benefits, but it also is much
more than that. Marriage has a legitimacy earned through many years of validation and institutionalization in law and society. Having been enhanced by government recognition for centuries, the state of being married always has been, and remains, a privileged and unparalleled status. 13. Marriage is a profound exercise of the individual freedom promised by the
American way of life. Legal marriage expresses and enhances individual freedoms because it is based on consent and freedom of choice. Mutual consent of the two parties always has been seen as essential to the marriage contract. The power to give such consent is the mark of the free person in possession of basic civil rights. This fact is most compellingly illustrated by the history of slavery in the United States. Slave marriages had no legal validity, most basically because slaves did not have the freedom to consent to the obligations of marriage, which their masters power could always overcome. B. 14. Development of American Marriage Law and Policy. From the beginning of the United States, marriage has been an institution
authorized and regulated by civil law. Each colony, state, and territory, including Nevada, enacted marriage laws and regulations among its very first founding legislation. These laws (often very detailed) were supreme over any religious views or practices of marriage, indicating
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each states wish to define the institution for its citizens and to use that means to create public order and social benefit.1 15. Marriage developed this way in the United States for several reasons. The Church
of England was in charge of marriages in England at the time of English colonization, but never succeeded in setting up an effective ecclesiastical authority in America. The arriving colonists practiced more than one religion. The great majority of colonists believed in the basic tenets of Christianity, but nonetheless intentionally established secular control over the making and breaking of marriages. When the United States was founded, it established itself as a nation of religious toleration, and all states established civil marriage. 16. For many, but not all, Americans, marriage is also invested with religious
significance, and the solemnization of marriages commonly takes religious form; nonetheless, marriage is and has always been governed by civil rather than religious authorities. Whether a marriage is recognized or not by a religion does not dictate its legality or validity. Religious authorities have been authorized to act as deputies of the civil authorities in performing marriage ceremonies, but not to determine the qualifications for entering or leaving a legally valid marriage. This is true nationally and in Nevada, where state law characterizes marriage as a civil contract. Nevada Compiled Laws: Supplement 1943-1949, 325 (1950) (That marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential.); Clark v. Clark, 44 Nev. 44, 59-60 (1920) (marriage is a civil contract). 17. Marriage in all of the United States has always been a consent-based, voluntary
choice by the partners. But it is also a legal status conferred and controlled by the state. Although a marriage must be grounded in mutual consent, most states, like Nevada, require and prescribe a form for solemnization and set out the specific requirements for obtaining a marriage license. Nor can a marriage be ended simply by consent; the state controls the granting of divorce. The Common law marriages in which the marital relationship has not been licensed or legally formalized, but the parties themselves consent, hold themselves out as and live together as married, are recognized in some states but have been abolished in most. Nevada permitted common law marriage until 1943, when it changed its law to require solemnization of all marriages newly entered into after that date. See Nevada Compiled Laws: Supplement 19431947, 325 (1950).
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state prescribes the obligations as well as rights of marriage in its dual role as a party to and guarantor of the couples consent to wed. The state formally and legally transforms the status of couples who follow the appropriate marriage regulations, giving them a new legal standing and a distinctive set of obligations and rights pertaining to them as married persons. 18. Societies in various times and places have defined marriage in different ways.
Marriage is an institution of human culture and thus can vary as much as human cultures vary. What is seen as legitimate marriage in a given society may be, for instance, polygamous or monogamous, matrifocal or patrifocal, patrilineal or matrilineal, lifelong or temporary, open or closed to concubinage, divorce-prone or divorce-averse, and so on. 19. In the United States, the institution of marriage is a public/private hybrid. Its very
definition by civil law makes it a public institution that the state has authorized; it is also public in the sense that a couple makes vows publicly before a witness, and the state reciprocally guarantees to recognize the couple's new rights and obligations by granting them a marriage license. At the same time, marriage is the exercise of an individual liberty and the foundation of the private familial realm. C. 20. Purposes of Marriage Marriage in the United States has served numerous complementary purposes and
functions, the relative salience of which has changed over time. The private, subjective experience of being married may vary as much as individuals vary, but historians can certainly document how the institution of marriage has been defined by law, functioned and changed. Among the purposes that marriage and its regulation by civil authorities have served through American history are: to create stable households; to create public order and economic benefit; to legitimate children; to assign providers to care for dependents (including the very young, the very old, and the disabled) and thus limit the publics liability to care for the vulnerable; to facilitate property ownership and inheritance; to shape the people, or to compose the body politic; and to facilitate governance (state regulation of the population). 21. In the interest of public order, state governments have bundled together legal
obligations with social rewards in marriage to encourage couples to choose committed
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relationships of sexual intimacy over transient relationships, whether or not these relationships will result in children. In the Anglo-American practice of several centuries ago that underlies our contemporary system, marriage was designed to be a regulatory institution that established recognizable household heads who would take economic responsibility for their dependents. In the early United States, state governments encouraged marriage (among the free white population) because maritally-organized households organized the broader population under male household heads and promised economic stability, both of which functions contributed to the common good. These benefits advantaged the state in the past when households more often included large numbers of people, as well as now, when most households and families are small. 22. Today, too, the purpose of the state in licensing and incentivizing marriage is to
create stable households in which the adults who reside there are committed to one another by their own consent and will support one another and any dependents they may have. 23. Over time, marriage has developed a social meaning in which the state places a
unique value on the couples choice to join in marriage, to remain committed to one another, to form a household based on their relationship, and to join in an economic partnership to support one another in the material needs of life. 24. The ability or willingness of couples to produce progeny has never been required
for or necessary to marriage under the law of any American state. For example, no state ever barred women past menopause from marrying or allowed a husband to divorce his wife because she was past childbearing age. Men or women known to be sterile have not been prevented from marrying. Nor could a marriage be annulled for an inability to bear or beget children. 25. In the past, widows and widowers remarried whenever a willing mate could be
found; although it was often clear that no children would result, marriage was nonetheless desirable because it produced the division of labor expected to undergird a well-functioning household. In our contemporary post-industrial economy, many divorced or widowed older adults marry when they are past childbearing age, usually for reasons of intimacy and stability. Ever since the 1920s, when birth control became available, sexual intimacy has been seen as separable from necessary reproductive consequences even for those of reproductive age. Since
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then and even more commonly since contraception became more reliable and widely available in the 1960s couples with no interest in or expectation of childbearing marry, and re-marry. 26. The notion that the main purpose of marriage is to provide an ideal or optimal
context for raising children was never the prime mover in states structuring of the marriage institution in the United States, and it cannot be isolated as the main reason for the states interest in marriage today. Nor is it historically correct to say that a biological link between parents and children is a necessary foundation for marriage or the principal or sole reason why marriage is good for society. 27. States marriage rules with respect to children have aimed more consistently at
supporting them than producing them. While having children was never a requirement, support for any child born or adopted into a family always has been an obligation of the household head. Today, it is a shared responsibility among the family, as much in the case of divorce or separation as in an intact marriage. Such rules have benefitted states by putting a critical limit on public responsibility for the young and the dependent. 28. Historically, marriage between the parents of a child was required for the childs
legitimacy. Marriage drew the line between legitimacy and illegitimacya function that was particularly important among the propertied who were concerned about legitimacy in lines of inheritance. Today, parentage can be determined for all children regardless of their parents marital status, and both adoption and reproductive technology create parents apart from biology. The law requires all parents to support their children, regardless of the circumstances in which those children came to be and regardless of the parents marital status. D. 29. The Evolution of Marriage and Its Legal Meaning. Marriage in the United States has been a flexible rather than a static or immutable
institution. As with other successful civil institutions, marriage has evolved over time to reflect changes in society at large. Marriage has been a successful civil institution precisely because it has been flexible, not static. Adjustments in key features of marital roles, duties, obligations, and its rules of entry have been necessary to preserve the appeal and value of marriage in our dynamic society, and to meet social needs and promises.
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30.
Marriage rules have varied from state to state, and legislators and judges in every
state have changed those rules and interpretations significantly over time. Since the founding of the United States, different states have set, interpreted, altered and adjusted marriage terms and rules in response to local circumstances and preferences. Over time there have been many nontrivial differences in states laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce. State marriage laws arose and responded to changes in the political and economic environment, religious forces, changes in the ethnic composition of a states residents, and many other local conditions. 31. Our countrys history reveals a number of striking and long-persisting episodes in
which marriage laws were used to discriminate among members of the populace, creating hierarchies of value and benefit, declaring some persons more worthy of the freedom, liberty, and privacy inherent in marriage rights than others. These laws created or enforced inequalities that were justified by their supposed naturalness while they existed; over time, however, these inequalities came to seem unwarranted and discriminatory indeed, unconstitutional because they defied the guarantee of equal protection of the laws. 32. Regional and cultural differences, as well as state legislators understandings of
their states interests, resulted in a patchwork quilt of marriage rules in the United States. Sometimes, as was the case with Nevada, states purposely distinguished their marriage rules from those of other states to compete in drawing population to their borders or with the intent to reap economic benefit for their own state. 33. As changes in marriage laws began to take place in the past, they were not readily
welcomed by everyone, and were difficult for some in society to accept. Indeed, many features of modern marriage that we take for granted today such as the ability of both spouses to act as individuals, to marry someone of another race, or to divorce for numerous reasons were fiercely resisted as they were coming into being, and were viewed by opponents as threatening to destroy the institution of marriage itself. 34. Three major areas of change over time illustrate ways that civil marriage has been
modified by the actions of courts and legislatures to adapt to societal changes, showing the
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resilience that has kept the institution of marriage vigorous and appealing: (a) spouses respective roles and rights; (b) racial restrictions; and (c) divorce. (i) 35. Spouses Respective Roles and Rights.
Since our countrys founding, marriage laws have undergone many significant
changes, in Nevada and elsewhere, to reflect modified societal views about the equality of the two sexes. Over time our country has moved to gender parity in marriage which would have been unthinkable to most Americans at the founding of the United States. 36. Under the Anglo-American common law, marriage gave very different roles and
legal rights to husbands and wives. The bargain of marriage as enshrined in early American statutes presumed and prescribed profound asymmetry and inequality in the respective roles and rights of husband and wife. 37. Historically, Anglo-American marriage law was based on the legal fiction that
married couples were a single entity, with the husband serving as the sole legal, economic, and political representative of that unit, and the womans identity merging into her husbands. This doctrine of marital unity was called coverture, and reflected societys views of the marital couple as a unit naturally headed by the husband. 38. Under coverture doctrine in American law, the wife had no separate legal or
economic existence. (That is why Ann Doe became Mrs. John Smith.) A married woman could not, under her own name, own or dispose of property, earn money, have a debt, sue or be sued, or enter into an enforceable agreement because her husband had to represent her in these things. Neither married partner could testify for or against the other in court nor commit a tort against the other because the two were considered one person. The two partners were assigned opposite economic roles understood as complementary: the husband was bound to support and protect the wife, and the wife owed her service and labor to her husband. Any property she owned before marriage became his. In community property states such as Nevada, unlike common law states, the wife retained title to her property, but coverture was reflected in the fact that the husband alone controlled management of that property and had the right to dispose of it; all community property was controlled solely by the husband until his death.
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39.
During the mid-1800s, the notion that married women could have no economic
personhood apart from their husbands began to clash with the realities of a developing society. In addition to arguments for married womens individuality from an equal rights point of view, functional economic arguments for change were persuasive to many. The static rural economy in which the coverture doctrine had arisen had begun to give way to a dynamic market economy. While coverture defined the roles of the two spouses as absolutely different, in practice the tasks of husband and wife often overlapped. Wives needed, and began to demand, rights to their own property and earnings, and legislators and husbands too could see advantages in wives being able to hold property in their own names. Judges and legislators saw the societal advantages in keeping families supported on both spouses assets rather than the husbands only. If a wife had separate property, that could keep a family solvent if a husbands creditors sought his assets. If wives could keep their earnings, then women married to profligate husbands would be able to support their children, and reduce pressure on the public purse for economic relief. 40. The property basis of coverture, which had been in place for hundreds of years and
understood as absolutely essential to marriage, was nonetheless eliminated by all the states, over an extended period of time. Far from viewing marriage as immutable, courts and legislatures altered marriage fundamentally in order to take account of societal needs and spouses evolving relationships within their households and in the larger society. 41. In several waves of statutory reform between the 1830s and the mid-twentieth
century, states replaced the common law understanding of marriage with their own detailed and evolving provisions about the economic competence of married women. The timing and content of individual state actions depended on local conditions. 42. The unseating of coverture was a protracted process, because it involved revising
the gender asymmetry in the marital bargain. The assumption that the husband was the provider, and the wife his dependent, did not disappear as soon as the wife became legal owner of her own property and wages earned outside the home. As late as the mid-twentieth century, the hand of the past showed itself most with regard to the wifes household labor, traditionally seen as her husbands domestic right. A legal writer in the 1930s noted that the courts have jealously
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guarded the right of the husband to the wifes services in the household, as part of the legal definition of marriage. Judges saw the wifes service as a necessary corollary to the husbands asymmetrical obligation of support; every state legally obliged the husband to his wife but not vice-versa.2 43. Over a century, repeated law-making in every state incrementally eliminated the
property basis of coverture and replaced it with myriad state laws. Community property states always seen as allowing a more equal bargain between spouses than common-law states later came to see the spousal inequalities in their marital property requirements. Nevada changed its law in 1959 to reflect equality of interest in marital property between husband and wife, and current Nevada law acknowledges equity between spouses in control and ownership of community property. 1959 Nev. Stat., ch. 298, at 408; Nev. Rev. Stat. 123.230. 44. The evolution of gender neutrality in marriage beyond the ownership and control
over property occurred over time through legislative developments and case holdings. During the 1970s, repeated successful challenges to sex discrimination in state laws had profound effects on domestic relations. Although the strenuous campaign to put an Equal Rights Amendment into the U.S. Constitution failed, states passed their own Equal Rights Amendments, which led toward gender neutrality in marriage and divorce reform. In divorce, for example, as in other aspects of family law today, gender neutrality in roles and decision-making is the premise. Obligations of the two spouses upon marital dissolution used to be assigned by gender, and they were asymmetrical: the husband was responsible for the economic support of any dependent children, while courts gave the mother a strong preference for custody. Under current divorce laws, in contrast, both parents of dependent children have responsibility for economic support and for childrearing; gender neutrality is the judicial starting point for post-divorce arrangements. 45. For couples who consent to marry today, marriage has been transformed from an
institution rooted in gender inequality and prescribed spousal roles to one in which the contracting parties decide on appropriate behavior toward one another, and the legal obligations
2
The laws requiring husbands support although by no means wholly effective inside marriage or out had consequences in marital roles, in the spouses' relative power, and in the labor market (disadvantaging married women seeking employment), as well as having coercive force over husbands, who could be thrown in jail for nonsupport.
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and benefits of the spouses do not depend on their sex. The two partners in a marriage are still economically and in other ways bound to one another by law. But the law no longer assigns asymmetrical roles to the two spouses. These changes reflect the modern view of marriage as an arrangement between two equal and consenting parties who have freely chosen one another. 46. Courts and legislatures have changed laws governing the meaning and structure of
marriage to keep it current with the time. The gender equality of marriage today would profoundly shock any American from the era of the American Revolution or the Civil War. But, they would recognize in contemporary marriage the institutions foundation in two consenting parties freely choosing one another. (ii) 47. Marriage across the Color Line. A major example of state variation in marriage law is the criminalization,
nullification, and voiding of marriages that crossed a racial or color line. This is a chequered history, not at all confined to the American South. The first such laws were passed in the Chesapeake colonies, but most slaveholding states before the Civil War relied on the regime of slavery itself, more than marriage bans, to prevent legitimate marriage between whites and blacks. Because slaves lacked basic civil rights (i.e., the right to body, liberty and property), states regarded them as also lacking the ability to consent validly to marriage. Furthermore, marriage obliged those undertaking it to fulfill certain duties defined by the state; a slaves prior and overriding obligation of service to the master made carrying out the duties of marriage impossible. 48. Following the abolition of slavery, state legislators strengthened bars to marriage
across the color line. Ten states enacted new laws that voided or criminalized marriage between blacks and whites, eight others strengthened their similar laws, and still others kept theirs in place. Enforcement of these laws usually occurred at the point of obtaining a marriage license. 49. Also around the time of the Civil War, fear and furor over immigration from China
arose in the western United States. The territorial legislature of Nevada in 1861 first named "Chinese" as a group who were prohibited from marrying whites. Soon five Western states (including Nevada) added Indians, Chinese and mongolians to those (Negro and mulatto)
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already prohibited from marrying whites. As theories of race continued to develop, laws using racial designations to ban and criminalize certain marriages became more complex, especially the Western states. As many as 41 states and territories of the U.S. banned, nullified, or criminalized marriages across the color line for some period of their history, often using racial classifications that are no longer recognized. 50. These laws varied widely across the states. New England was less avid in
preventing these marriages than other regions; Vermont, New York, and Connecticut never had such laws, but Massachusetts, Rhode Island, and Maine did, early in their histories. 51. Many states had complicated histories on this issue, legislating repeatedly and
differently over the decades. Some imposed outsize punishments: Alabama, for example, penalized marriage, adultery, or fornication between a white and any negro, or the descendant of any negro to the third generation, with hard labor of up to seven years. Some states (especially in the West) expanded the categories of groups whose marriage to whites was prohibited. As the historian Peggy Pascoe has shown (WHAT COMES NATURALLY, at 119): In one state or another, all of the following groups were prohibited from marrying Whites: Negroes, Mulattoes, Quadroons, Octoroons, Blacks, Persons of African Descent, Ethiopians, Persons of Color, Indians, Mestizos, Half-Breeds, Mongolians, Chinese, Japanese, Malays, Kanakas, Coreans, Asiatic Indians, West Indians, and Hindus. 52. Nevada , in its original territorial laws in 1861, made it a criminal offense (with a
mandatory prison term of at least one year) for marriage or cohabitation to occur between, and for someone to solemnize the marriage of any "white man or woman" with any "black person, mulatto, Indian, or Chinese." In 1912, Nevada added even more prohibited categories, making its law the most racially comprehensive in the nation (but then in 1919 removed the category of native Americans from the ban). 1912 Rev. Laws of Nev., Vol. 2, at 1869; 1919 Nev. Stat., ch. 72, at 124. 53. Legislators often justified the laws criminalizing marriage across the color line by
saying that such marriages were against nature or against the Divine plan, much as opponents of same-sex marriage argue today. They contended that permitting cross-racial couples to marry
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would fatally degrade the institution of marriage. To the white legislators who passed these laws, only marriage to other whites qualified as natural. 54. Whatever the high-flown rhetoric surrounding them, however, these bars to
marriage served to deny public approval to intimate relationships between whites and persons of color. By preventing such a relationship from ever gaining the status of marriage, legislators sought to delegitimize the relationship altogether. In parallel fashion, preventing legal recognition of a relationship between a couple of the same sex (either at the state or federal level) functions to discredit that relationship. 55. While these laws did not completely exclude anyone from entering marriage, they
deeply constrained free choice of marital partner. Couples in love across the color line had to settle for the dangerous status of informal marriage (which was also criminal in Nevada and many other states, and lacked respect in their communities), or, alternatively, marrying someone other than the person they loved. 56. These laws expressed state preferences at the time. In 1930, laws in thirty states
still nullified and punished marriage between whites and black, and many of them, like Nevada's law, treated marriage between whites and Asians the same way. As a result, marriage was the most criminalized form of race-related conduct at the time. 57. Social and legal views on this question changed slowly and haltingly during the
twentieth century, although racially-based marriage bans continued. They continued to be justified on now-discredited grounds. For example, legislators often said that such prohibitions mirrored what nature or God dictated, and were necessary to prevent corruption of the institution of marriage. 58. A major shift of opinion occurred in the wake of World War II, which had
stimulated an emphasis on cultural and religious pluralism as a national value in the United States. In 1948, the Supreme Court of California, where marriages between whites and either blacks or Asians had been prohibited for almost a century, was the first state high court to hold that race-based restrictions on marriages were unconstitutional. The Court struck down racebased restrictions on choice of spouse, holding that legislation addressing the right to marry must
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be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws. Perez v. Sharp, 32 Cal.2d 711, 715 (1948). 59. Over the next two decades, more than a dozen other states eliminated their own
race-based bars to marriage, spurred, to be sure, by the civil rights movements impact on Americans racial views. In 1959, Nevada repealed its laws prohibiting interracial marriage. 1959 Nev. Stat., ch.193, at 216. 60. Eventually, a challenge to Virginias 1924 law (which made marriage between a
white and a non-white person a felony) led the Supreme Court of the United States to affirm freedom of choice of spouse regardless of race in Loving v. Virginia, 388 U.S. 1 (1967). This ended the nearly 300-year history of race-based legislation on marriage. 61. Today, virtually no one in the United States questions the legal right of individuals
to choose a marriage partner without government interference based on race. In Nevada in 200810, more than a quarter of new marriages were cross-racial, the highest rate in the nation except for Hawaii.3 A prohibition long embedded in laws and concepts of marriage in Nevada and the majority of the United States has been entirely eliminated. (iii) Divorce. 62. Legal and judicial views of divorce likewise have evolved to reflect societys view
of marriage as an embodiment of choice and consent, in which the marriage partners decide themselves what is an appropriate enactment of their marital roles. 63. Divorce was possible in some of the English colonies and was introduced in
several states immediately after the American Revolution. Within several decades most states and territories allowed divorce, albeit under extremely limited circumstances. Divorce grounds initially involved only such breaches of the marriage as adultery, desertion, or conviction of certain crimes. Grounds such as cruelty appeared later, in the mid-nineteenth century. Nevada's initial law stipulated divorce grounds typical in 1861 when it was passed: impotence, adultery,
3
Pew Research Center report, released February 16, 2012 , "The Rise of Intermarriage: Rates, Characteristics Vary by Race and Gender," by Wendy Wang, Appendix 2. http://www.pewsocialtrends.org/2012/02/16/the-rise-of-intermarriage/7/#appendix-2-state-andregional-rates accessed 8-30-2012.
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willful desertion, felony conviction, habitual drunkenness, extreme cruelty, husband's neglect to provide. 64. Divorce began as (and long remained) an adversary proceeding; that is, one spouse
had to accuse the other of committing a wrong against the marriage. The essence of divorce was that one of the partners had broken the social and legal contract embodied in marriage and set by the state. The guilty partys fault was a fault against the state, as well as against his or her spouse. 65. Like other early marriage rules, early divorce laws presupposed different and
asymmetrical marital roles for husband and wife. For instance, desertion by either spouse was a ground for divorce, but failure to provide was a breach that only the husband could commit. In court, a wife seeking divorce had to show that she had been a model of obedience and service to her husband in order to succeed in her petition. 66. Over time, divorce became more easily obtainable as state legislation expanded the
grounds for it, while courts were still required to find one of the parties to be at fault. The expansion of grounds for divorce was hotly debated, and fiercely opposed in some quarters, throughout the nineteenth century. Critics viewed divorce as antagonistic to the institution of marriage. Major religions opposed divorce entirely, or accepted adultery as the sole justification for divorce. 67. Alarmist critics were sure that liberalized treatment of divorce would undermine
the marital compact entirely. As some states expanded their grounds for divorce in response to local circumstances, extreme differences among them arose. For example, South Carolina permitted no divorces until the late 1940s, and New York granted divorce for adultery only until the 1960s. Nevada went in the opposite direction, becoming the state most generous in granting divorce. The significant differences among states provisions caused great alarm about migratory divorce (i.e., couples traveling from their home state to a more lenient jurisdiction such as Nevada) and this possibility was attacked as a pernicious evil. 68. Beginning in the early 1900s, Nevada enacted increasingly liberal divorce laws. In
the 1910s and 1920s, Reno and Las Vegas began building a tourist economy by publicizing Nevadas divorce laws. Despite heated controversy concerning divorce throughout the nation,
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Nevadans reemphasized its own latitude, with especially lenient residency requirements and no restrictions on remarriage. In 1927, Nevada reduced its residency requirement for divorceseekers to three months. Then, in 1931, it reduced the residency requirement further to only six weeks, besides expanding grounds for divorce and requiring virtually no proof, thus becoming the most liberal venue for obtaining a divorce in the nation. Reno and Las Vegas fueled the state's economy by marketing nation-wide the availability there of quick and easy divorce, as well as quick and easy marriage. 69. In 1967, Nevada adopted incompatibility as an additional ground for divorce,
essentially creating no-fault divorce in the state. This was the beginning of a trend, formally visible when in 1969, California enacted the nations first complete no-fault divorce law, removing consideration of marital fault from the grounds for divorce, awards of spousal support, and division of property. (The American bar had led this reform, since many divorce lawyers had been troubled for decades that the adversary or 'fault' principle often led to cursory fact-finding hearings and even fraud upon the court by colluding spouses seeking to separate.) 70. The enactment of no-fault divorce was soon embraced nationally as a means of
dealing honestly with marital breakdowns, achieving greater equality between men and women within marriage, and advancing further the notion of consent and choice as to ones spouse. By 1977, all but three U.S. states had adopted some form of no-fault divorce, reflecting societys view that both parties' consent should persist through a marriage, and that the couple themselves were the best judges of the sufficiency of their performance of marital roles. 71. The liberalization of divorce that took place in the twentieth century vastly
changed the institution of marriage as it had been known and experienced in earlier centuries. The state, through the courts, today still retains a strong role in the ending of marriages (since post-divorce terms of support must have court approval to be valid), but the move to no-fault divorce showed a major shift toward enabling spouses to set their own marriage goals and to determine how well those goals were being met. 72. In divorce, as in other aspects of family law today, the law promotes gender
neutrality, including as to custody and obligations of alimony and child support. Previously,
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when a marriage broke up, the father was responsible for the economic support of any dependent children, while courts gave the mother a strong presumption for custody of young children. Under current divorce laws, in contrast, both parents of dependent children have responsibility both for economic support and for childrearing. Gender neutrality is the judicial starting point for post-divorce arrangements, including alimony, in consequence of an equal protection challenge to the gender asymmetry of earlier alimony provisions (See Orr v. Orr, 440 U.S. 268 (1979).) E. 73. Marriage Today. Marriage has lasted as well as changed throughout the centuries. Marriage retains
its basis in voluntary consent, mutual love and support, and economic partnership. The changes in marriage observable over time, as illustrated above, have all been in the direction of increasing equality of the partners, gender-neutrality of marital roles, and control of marital role definition and satisfaction by the marriage partners themselves rather than by state prescription. 74. Among the many other striking changes in American marriage laws over time, in
addition to the changes discussed above, the states have removed most criminal restrictions on extramarital or nonprocreative sexual activities; the law no longer treats men who conceive children out of wedlock as non-parents; children are not formally deemed bastards or illegitimates at law if born out of wedlock; issues of custody and visitation have been separated from marital misconduct unrelated to childrearing; and the age for entry into marriage has generally risen. 75. Marriage has evolved into a civil institution through which the state formally
recognizes and ennobles individuals choices to enter into long-term, committed, intimate relationships. In Nevada, and elsewhere, marital relationships are founded on the free choice of two individuals and their continuing mutual consent to stay together. 76. Nevada, along with other states, has eliminated gender-based rules and distinctions
relating to marriage in order to reflect contemporary views of gender equality and to provide fundamental fairness to both marriage partners. Nevada law treats men and women without regard to sex and sex-role stereotypes except in its statutory and constitutional requirements that men may only marry women and women may only marry men.
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77.
Nevada law expressly limits marriage to one man and one woman. See Nev. Rev.
Stat. 122.020. By ballot initiative approved by voters in 2000 and 2002 during the general election, Nevada amended its Constitution to define marriage as the union of one man and one woman. Nev. Const. art. 1, 21. (Only a marriage between a male and female person shall be recognized and given effect in this state.). This sex-based requirement is out of step with the gender-neutral approach of contemporary marriage law. 78. In 2009, the Nevada Legislature enacted the Nevada Domestic Partnership Act,
which allows eligible couples, either of the same sex or different sex, to register with the state as domestic partners. Nev. Rev. Stat. 122A.100, 122A.010, et seq. This law provides registered domestic partners with comprehensive rights and responsibilities under state law, comparable to the rights and responsibilities of married couples. Significantly, civil union and domestic partnership laws such as Nevadas are a recent phenomenon. Never before the 21st century in any of the United States have states created such a separate legal status for couples, or means of obtaining comprehensive legal rights and responsibilities comparable to marriage. 79. The exclusion of same-sex couples from equal marriage rights stands at odds with
the direction of historical change in marriage in the United States. Other uses of marriage restrictions to discriminate between and among groups of citizens in their freedom to marry partners of their choice have been eliminated. Contemporary public policy assumes that marriage is a public good. Depriving some citizens of the power to marry the one whom they love or marking some citizens as unfit to join the national family because of their choice of loved one is not in keeping with public policy regarding either the benefit of marriage or the rights of citizens. IV. CONCLUSION 80. Despite the creation of alternative legal statuses for couples of the same sex, no
other means of recognizing a freely-chosen intimate relationship has the same meaning, status, significance, and benefits as marriage. 81. Throughout American history, state legislatures and courts have made and altered
laws governing the meaning and structure of marriage. Restrictions on marriage that were seen as necessary in their time have since been removed as unwarranted and/or unconstitutional.
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Appendix Page 101
Exhibit A
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NANCY F. COTT ncott@fas.harvard.edu Jonathan Trumbull Professor of American History, Harvard University, and Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library on the History of Women in America, Radcliffe Institute for Advanced Study Department of History 35 Quincy St. Harvard University Cambridge MA 02138 tel. 617-495-3085
Schlesinger Library 10 Garden St. Cambridge MA 02138 tel. 617-495-8647
EDUCATION: Ph.D. 1974, in History of American Civilization, Brandeis University. M.A. 1969, in History of American Civilization, Brandeis University. B.A. l967, magna cum laude in History, Cornell University. TEACHING APPOINTMENTS: Harvard University: Jonathan Trumbull Professor of American History, and Carl and Lily Pforzheimer Foundation Director of the Schlesinger Library, Radcliffe Institute for Advanced Study, 2002 1979-86; Professor, 1986-90; Chair of Women's Studies Program, 1980-1987, 1992-93; Chair of American Studies Program, 1994-97; Stanley Woodward Professor of History and American Studies, 1990--2000; William Clyde DeVane Professor, spring 1998; Sterling Professor of History and American Studies, 2001. Boston Public Library, NEH Learning Library Program, Lecturer, 1975. Wellesley College: Instructor of History, part-time, 1973-74. Clark University: Instructor of History, part-time, 1972. Wheaton College: Instructor of History, part-time, 1971. HONORS, FELLOWSHIPS AND GRANTS: Mary L. Cornille Distinguished Visiting Professor in the Humanities, Wellesley College, 2012. American Academy of Arts & Sciences elected member, 2008-Centre d'etudes nord-americaines, Ecole des Hautes Etudes en Sciences Sociales, Paris: French-American Foundation Chair, 2003-04. Fulbright Lectureship Grant (Japan-U.S. Educational Commission), July 2001. Center for Advanced Study in the Behavioral Sciences, Stanford CA, 1998-99, 2008-09. Radcliffe College Alumnae Association Graduate Society Medal, 1997. Visiting Research Scholar, Schlesinger Library, Radcliffe College, 1991, 1997. National Endowment for the Humanities Fellowship, 1993-94. Liberal Arts Fellowship in Law, Harvard Law School, 1993-94, l978-79,. A. Whitney Griswold grant (Yale Univ.), 1984, 1987, 1988, 1991, 1993, 2000. American Council of Learned Societies Grant-in-Aid, 1988. Charles Warren Center Fellowship, Harvard University, l985. John Simon Guggenheim Memorial Foundation Fellowship, l985. Fellow, Whitney Humanities Center, Yale University, l983-84, 1987. Radcliffe Research Scholarship, Spring l982. Rockefeller Foundation Humanities Fellowship, l978-79. Phi Beta Kappa, l966; Phi Kappa Phi, l967. PUBLICATIONS: BOOKS Public Vows: A History of Marriage and the Nation (Harvard U. Press, 2000). No Small Courage: A History of Women in the United States, editor (Oxford U. Press, 2000). Root of Bitterness: Documents of the Social History of American Women, revised edition, coeditor with
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Jeanne Boydston, Ann Braude, Lori D. Ginzberg, and Molly Ladd-Taylor, Northeastern U. Press, 1996) A Woman Making History: Mary Ritter Beard Through Her Letters (Yale U. Press, 1991). The Grounding of Modern Feminism (Yale U. Press., 1987). A Heritage of Her Own: Towards a New Social History of American Women, coeditor with E. H. Pleck (Simon & Schuster, l979). The Bonds of Womanhood: 'Woman's Sphere' in New England, l780-l835 (Yale U. Press, 1977; 2d ed. with new preface, 1997). Root of Bitterness: Documents of the Social History of American Women (E.P.Dutton, l972) PUBLICATIONS: ARTICLES "Revisiting the Transatlantic 1920s: Vincent Sheean vs. Malcolm Cowley," American Historical Review, forthcoming February 2013. "The Public Stake," in Just Marriage, Mary Lynn Shanley et al., (NY, Oxford U Press, 2004), 33-36. Public Emblem, Private Realm: Family and Polity in the United States, in Democratic Vistas, ed. Anthony Kronman, (New Haven, Yale U. Press, 2004). Womens Rights Talk, American Studies in Scandanavia 32:2 (2000), 18-29. "Marriage and Women's Citizenship in the United States, 1830-1934," American Historical Review 103:5 (Dec. 1998), 1440-74. "Justice for All? Marriage and Deprivation of Citizenship in the United States," in Justice and Injustice, Amherst Series in Law, Jurisprudence & Social Thought, ed. Austin Sarat (Ann Arbor, U. Mich, 1996). "'Giving Character to Our Whole Civil Polity': Marriage and State Authority in the Late Nineteenth Century," in U.S. History as Women's History, ed. Linda Kerber et al. (Chapel Hill, U.N.C., 1995). "Early Twentieth-Century Feminism in Political Context: A Comparative Look at Germany and the United States," in Suffrage & Beyond, ed. Caroline Daley and Melanie Nolan (Auckland, NZ, Auckland U.P., 1994). "The Modern Woman of the 1920s, American Style," in La Storia Delle Donne, vol. V, Francoise Thebaud, ed., G. Laterza & Figli (Italy), 1992 (also French, Dutch, Spanish and U.S. editions). "Two Beards: Coauthorship and the Concept of Civilization," American Quarterly, 42:2 (June 1990). "Historical Perspectives: The Equal Rights Amendment in the 1920s," in Conflicts in Feminism, ed. Marianne Hirsch and Evelyn Fox Keller (N.Y., Routledge, 1990). "On Men's History and Women's History," in Meanings for Manhood: Constructions of Masculinity in Victorian America, ed. Mark Carnes and Clyde Griffen (Chicago, U. Chicago Press, 1990). "Across the Great Divide: Women's Politics Before and After 1920," in Women, Politics, and Change, ed. Louise Tilly and Patricia Gurin (N.Y.,Russell Sage Foundation, 1990); revised and reprinted in One Woman, One Vote: Rediscovering the Woman Suffrage Movement, ed. M. Wheeler (NewSage, 1995). "What's in a Name? The Limits of Social Feminism or, Expanding the Vocabulary of Women's History," Journal of American History, 76:3 (December 1989). "The South and the Nation in the History of Women's Rights," in A New Perspective: Southern Women's Cultural History from the Civil War to Civil Rights, ed. Priscilla C. Little and Robert C. Vaughan (Virginia Foundation for the Humanities, Charlottesville, 1989). "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," with Linda Kerber et al., William and Mary Q., 3d ser., 46 (July 1989). "Women's Rights: Unspeakable Issues in the Constitution," The Yale Review, 77:3 (Spring 1988), 38296. "Feminist Theory and Feminist Movements: The Past Before Us," in What is Feminism? ed. Juliet Mitchell and Ann Oakley (Oxford, Basil Blackwell, l986, and N.Y., Pantheon, 1986). "Feminist Politics in the l920s: The National Woman's Party," Journal of American History, 71 (June 1984). "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790-l840," Signs: A Journal of Women in Culture and Society, 4 (1978).
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"Notes Toward an Interpretation of Antebellum Childrearing," The Psychohistory Review 6 (Spring 1978). "Eighteenth-Century Family and Social Life Revealed in Massachusetts Divorce Records," Journal of Social History, 10 (Fall l976). "Divorce and the Changing Status of Women in 18th-Century Massachusetts," William and Mary Quarterly, 3rd ser., 33 (October 1976). "Young Women in the Second Great Awakening in New England," Feminist Studies, 3 (Fall 1975). PUBLICATIONS: MISCELLANY Introduction, Feminists Who Changed America, 1963-75, ed. Barbara Love (U. of Illinois Press, 2006). "Afterword," Haunted by Empire: Geographies of Intimacy in North America, ed. Ann Laura Stoler, (Duke Univ. Press, 2006). "Janet Flanner," in Notable American Women: Completing the Twentieth Century (Cambridge, Harvard Univ. Press, 2005). Co-editor with Drew Gilpin Faust, The Magazine of History, special issue on Gender History, March 2004. "Considering the State of U.S. Women's History," with others, Journal of Women's History 15:1 (2003). "Response," to "Books in Review: Public Vows: A History of Marriage and the Nation," The Good Society, 11:3 (2002), 88-90. The Great Demand, in Days of Destiny, ed. James MacPherson and Alan Brinkley, Society of American Historians (Agincourt Press, 2001). Introduction to Jane Leveys Imagining the Postwar Family, Journal of Womens History, Fall 2001. "Mary Ritter Beard," in American National Biography (Oxford U. Press, 1999). "Challenging Boundaries: Introductory Remarks," Yale Journal of Law and Feminism 9 (1997). "A Conversation with Eric Foner," culturefront 4:3 (Winter 1995-96). "Bonnie and Clyde," in Past Imperfect: History and the Movies, ed. Mark Carnes (N.Y., Henry Holt, 1995). "Privacy"; "Domesticity"; "Mary Ritter Beard"; in A Companion to American Thought, ed. Richard Wightman Fox and James Kloppenberg (Cambridge, Basil Blackwell, 1995). "Charles A. Beard and Mary Ritter Beard," The Reader's Companion to American History, ed. Eric Foner and John Garraty, 1991. "Comment on Karen Offen's 'Defining Feminism: A Comparative Historical Approach,'" Signs: Journal of Women in Culture and Society, 15:11 (1989). Editorial, Special issue of Women's Studies Quarterly, XVI:1/2 Spring/(Summer 1988), "Teaching the New Women's History." Introduction to A New England Girlhood by Lucy Larcom (Boston, Northeastern U. Press, 1985). "Women as Law Clerks: Memoir of Catherine G. Waugh," in The Female Autograph, New York Literary Forum, 12-13 (l984). Afterword to Sarah Eisenstein, Bread and Roses, ed. Harold Benenson (London, RKP, 1983). "Mary Ritter Beard," in Notable American Women: The Modern Period (1980). PUBLICATIONS: REVIEW ESSAYS "Adversarial Invention," American Quarterly, 47:2 (June 1995). "Patriarchy in America is Different," American Bar Foundation Research Journal, 1987:4 (Fall 1987). "Women and the Ballot," Reviews in American History, 15:2 (June 1987). "The House of Feminism," New York Review of Books, 30 (March 17, 1983). "The Confederate Elite in Crisis: A Woman's View," The Yale Review, 71 (Autumn 1981). "Liberation Movements in Two Eras," American Quarterly, 32 (Spring 1980). "Abortion, Birth Control, and Public Policy," The Yale Review, 67 (Summer 1978).
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PUBLICATIONS: REVIEWS in American Historical Review, American Prospect, Boston Globe, Business History Review, Intellectual History Newsletter, International Labor and Workingclass History, Journal of American History, Journal of Interdisciplinary History, New Mexico Historical Review, New York Times Book Review, Pacific Studies, Signs: A Journal of Women in Culture and Society, The Times Literary Supplement, Women's History Review, and The Yale Review. PUBLICATIONS: EDITORIAL PROJECTS General editor, The Young Oxford History of Women in the United States, 11 volumes, Oxford University Press, 1994. Editor, History of Women in the United States, 20 volumes (article reprint series), K.G. Saur Publishing Co., 1993-94. Guest Editor, special issue of Women's Studies Quarterly, XVI:1/2 (Spring/Summer 1988), on "Teaching the New Women's History." OTHER PROFESSIONAL ACTIVITIES: GRANT PROJECTS: Dissertation seminar in gender history for graduate students, Mellon Foundation, 2002. Steering Committee, Ford Foundation Project on Women and Gender in the Curriculum in Newly-Coeducational Institutions, 1985-90. Principal Investigator, National Endowment for the Humanities Implementation Grant, "Strengthening Women's Studies at Yale," l983-86. Principal investigator, National Endowment for the Humanities Pilot Grant to Women's Studies, Yale University, l98l. ACADEMIC JOURNALS AND REFERENCE WORKS: American National Biography, senior editor, 1989-98. American Quarterly, editorial board, l977-l980. Feminist Studies, associate editor, l977-85, editorial consultant, 1985-97. Gender and History, advisory board, 1987-92; editorial collective, 1993-96. Journal of American History, editorial board, 1996-99. Journal of Social History, editorial board, l978-. Journal of Women's History, editorial board, 1987-98. Notable American Women, volume 5, advisory board, 1999-04. Orim: A Jewish Journal at Yale, editorial board, l984-88. The Readers' Encyclopedia of American History, advisory board, 1989-91. Reviews in American History, editorial board, 1981-85. Women's Studies Quarterly, editorial board, 1981-94. Yale Journal of Law and the Humanities, advisory board, 1988-2001. The Yale Review, editorial board, 1980-88, 1991-99. SERVICE IN PROFESSIONAL ORGANIZATIONS: American Historical Assocation, delegate to American Council of Learned Societies, 2008-12 Society of American Historians, Executive Board, 2006-Elected member: American Antiquarian Society, Massachusetts Historical Society, Society of American Historians. Organization of American Historians: Merle Curti Prize Committee, 2008; Binkley-Stephenson Prize Committee, 1987-1990 (chair, 1988); elected member of Nominating Committee, 1993-95 (Chair, 199495); elected member of Executive Board, 1997-2000; OAH Lecturer, 1997--. Berkshire Conference of Women Historians: Co-Chair, Eighth Berkshire Conference on the History of Women (1990).
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American Studies Association: Nominating Committee, l98l-84; National Council, 1987-90; American Quarterly Review Committee, 1989. ACADEMIC ADVISORY BOARDS: The Museum of Women/The Leadership Center, N.Y. State, (chair of historians advisory board) 2000--. Princeton University Program in Women's Studies, l985-2001. Project on Gender in Context, Mt. Holyoke College, l982-83. The Correspondence of Lydia Maria Child, 1977-80. Schlesinger Library on the History of Women, Radcliffe College, 1977-80. AUDIOVISUAL MEDIA PROJECTS: Advisory Board, 888 Film Project, Left on Pearl, 2006--. Advisory Board, Women 2.0 Summit, 2007. Advisory Board, Blueberry Hill Productions Ten Stories Project, 2005-WGBH documentary proposal on the History of Marriage in America, Principal consultant, 2002. Institute on the Arts and Civic Dialogue, Affiliated Scholar, American Repertory Theatre and W.E.B. DuBois Institute, summer 1999. Margaret Sanger film project (by Bruce Alfred), Consultant, 199496, "One Woman, One Vote: The Struggle for Woman Suffrage in the U. S.," Advisory Board, Educational Film Center, 1991-95. "The American Experience," Advisory Board, WBGH-TV, Boston, MA, 1986--90. Consultant, "Mary Silliman's War," film by Steven Schechter, 1987. Consultant, "Lowell Fever," film by Made in U.S.A., Inc. 1985-87. "Legacies: Family History in Sound," radio course on the history of women and the family in the U.S., Advisory Board, l984-86. Connecticut Public Radio series, "Choices"/Everyday History, Radio Programs for Children 8 to 12," Consultant, 1982-83. Dan Klugherz (Film) Productions, N.Y., Consultant, l98l-82. Stanton Project on Films on Women in American History, Advisory Board, 1974-77. PRIZE AND FELLOWSHIP SELECTION COMMITTEES: Merle Curti Prize, Organization of American Historians, 2008. Mark Lynton History Book Prize, 2002. Bunting Institute Fellowship Program, Radcliffe College, 1982, 1996. American Antiquarian Society Fellowships, 1991, 1992, 1994. Governors' Prize, Yale University Press, 1990. American Council of Learned Societies, Fellowships for Recent Recipients of the Ph.D., 1987, 1988, 1990. Bancroft Prize (Columbia University), 1985. Radcliffe Research Scholars Program, 1982. Hamilton Prize, Women and Culture Series, U. Michigan Press, 1981. CONSULTANT/EVALUATOR (selected list): Johns Hopkins University, History Department, February 2011. Wellesley College, Wellesley Centers for Women, June 2010. University of Helsinki, city center campus, 2005. Univ. of California at Santa Barbara, Womens Studies Program, February 2002. National Endowment for the Humanities, fellowships for university teachers, 1998; media projects, 2001. History Department, University of Oregon, 1999. Woodrow Wilson Center Fellowships, 1991, 1992, 1994.
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State of Colorado Commission on Higher Education, 1990. National Humanities Center Fellowships, 1988, 1989, 1991, 1992, 1994. "Foundations of American Citizenship," curriculum project, Council of Chief State School Officers, 1987. Connecticut Humanities Council, 1986. Rockefeller Foundation Gender Roles Fellowships Program, 1985. Radcliffe Research Scholars, l983. Working Women's History Project, 9 to 5, Organization for Women Office Workers, 1981. Rockefeller Foundation Humanities Fellowships, l980. ACADEMIC LECTURES, PAPERS, COMMENTS DELIVERED (selected list): "The Past, Present, and Future of Feminism," OAH night lecture for the AP U.S. Exam-Reading Session, Louisville, KY, June 2012. "The Past, Present, and Future of Feminism," keynote for the 19th annual Susan B. Anthony Institute Interdisciplinary Graduate Conference at the Univ. of Rochester, March, 2012. "The Future of Marriage," Boston Review evening symposium, M.I.T., March 2011. "The History of Marriage on Trial," Margaret Morrison Distinguished Lecture in Womens History, Carnegie Mellon University, Pittsburgh, PA March 2011. "Why History Matters: Same-Sex Marriage," U.C.L.A. History Department, February 2011. "The History of Marriage on Trial in Perry v. Schwarzenegger," American Association of Law Schools conference, San Francisco, January 2011. "Marriage on Trial," Gender and Women's Studies Program, University of Kentucky, December 2010. "The Craft of History and the Constitution: The Role of Historians as Expert Witnesses in Perry v. Schwarzenegger," Yale Law School, October 21, 2010. Keynote, "Embedded Bodies: Reproductive Justice in Social Context," Harvard Law School, October 15, 2010. "The History of Marriage on Trial," University of California at Berkeley, History Department, March 2010. Panelist, "State of the Field: History of Women/Gender/Sexuality, Organization of American Historians annual meeting, April 2010. "Born Modern," Center for Advanced Study in the Behavioral Sciences, Stanford University, October 2008. Revisiting the Jazz Age, John OSullivan Memorial Lecture, Florida Atlantic U., November, 2007. Recovering the Interwar Generation, Modern America Workshop, Princeton University, April 2007; University of Chicago Social History Workshop, May 2007. The Reproduction of Gender, graduate student conference on Nineteenth-Century Reproduction,Temple University, February 2007. Women in the Rubble, Newcombe Institute Summit on Educating Women for a World in Crisis, New Orleans, LA, February 2007. Marriage and Citizenship in the History of the United States, Hall Center for the Humanities, University of Kansas, November 2006. Women of Happenstance, First Ladies Conference, McKinley Homestead, Canton, OH, Apr 2006. Revisiting the 1920s Generation, Rothermere American Institute, Oxford Univ., January 2006. "Boundaries and Blinders in History: Revisiting the 1920s Generation," keynote address, Western Association of Women Historians annual meeting, Phoenix, AZ, April 2005. Panelist, "The Political Spectrum of Same-Sex Marriage," conference on Breaking with Tradition: New Frontiers for Same-Sex Marriage, Yale Law School, March 2005. "Gender History and Generations," Women's History Month address, Rutgers-Camden Law School, Camden NJ, March 2005. "Collecting Women's History at the Schlesinger Library," Society of American Archivists annual meeting, August 2004.
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Colloquium on George Chauncey's Gay New York, Dec. 2003, Ecole Normale Superieur, Paris. Closing remarks, Library of Congress symposium, "Resourceful Women," June 19-20, 2003. "Women, Men, and Modern Marriage," Ecole des Hautes Etudes en Sciences Sociales, November 2003. Whats Love Got to Do with It? Marriage as a Public Institution in the United States, Fairleigh Dickinson University, March, 2003. Comment, Revisiting Domesticity: Symbolic Economies of Sex and Gender, American Historical Assoc. annual meeting, Washington, D.C., January 2003. Gendering Colonial America, Making Womens History Colonial: A Roundtable, Berkshire Conference on Womens History, Storrs, CT, June 2002. Comment, panel on Race and Family in Wartime America: Illegitimacy, Immigration, and the Church, Organization of Amer. Hist. annual meeting, Washington, D.C. April 2002. New Directions in Womens History after 9/11, Brandeis University, March 2002. The Efficacy of Womens History, Bridgewater State University, March 2002. Marriage and the Nation, Harvard Law School Legal History Forum, October 2001. The Family, Citizenship, and Democracy in the United States, University of Tokyo, Japan, July 2001. Women as Workers, Citizens, and Activists in the Mid-Twentieth-Century U. S. four- seminar series, Ritsumeikan University, Kyoto, Japan, July 2001. Grooming Citizens: Marriage in the Political History of the United States, Kyoto American Studies Seminar, Kyoto, Japan, July 2001. Public Sanctity for a Private Realm: The Family, the Rhetoric of Democracy, and Constitutional Values in the U.S., Bacon Lecture on the Constitution, Boston Univ., May 2001. Democracy and the Family, Yale Tercentennial Series Democratic Vistas, April 2001. Marriage and the Nation: Historical Perspectives, Northeastern University Feminist Studies Colloquium, March 2001. Public Vows: On Marriage and the Nation in the Early Twentieth-Century U.S., Center for Historical Study, U. Maryland, College Park, October 2000. Marriage Revised and Revived, Associated Yale Alumni faculty lecture, May, 2000. Comment, session on The Idea of Marriage: The British Atlantic Context, International Seminar on the History of the Atlantic World, 1500-1800, Harvard Univ., August 2000. Reflections on Women and/in Authority, Women, Justice, and Authority: A Working Conference, Yale Law School, April 28, 2000. Grooming Citizens: Marriage and the Civic Order in the United States, In the Company of Scholars Lecture Series, Yale University Graduate School, April 2000. Public Vows: Marriage as a Public Institution, History Department, Stanford University, January 2000. "An Archaeology of American Monogamy," History Department, Northwestern Univ., October 1999. "The Modern Architecture of Marriage," Gender and Policy Workshop, Department of Economic History, Stockholm University, Stockholm, Sweden, October 1999. "Women's Rights Talk," conference on "Rights--Civil, Human, and Natural," University of Southern Denmark, Odense, Denmark, October 1999. Comment, "Making and Breaking Marriages: Reconsidering American Families through the Law, Berkshire Conference on the History of Women, June 1999. "Marriage Fraud in the Making of Immigration Restriction in the U.S." Center for Cultural Studies, Univ. of California, Santa Cruz, May 1999. Panel discussant, women and citizenship, Univ. of California, Berkeley, October 1998. "An Approach to Citizenship through Gender History," Univ. of Colorado at Colorado Springs, Feb.1999. "Marriage and Citizenship," Legal Theory Workshop, Yale Law School, October 1998. Comment, "Public Policy and Marriage," American Society for Legal History, Seattle, WA, Oct. 1998. Thinking about Citizenship and Nationality through Women's History," keynote address, Australian Historical Association, Sydney, Australia, July 1998. "Race, Blood, and Citizenship: A Gendered Perspective on U.S. Immigration Restriction, 1895-1917,"
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International Federation for Research in Women's History conference, Melbourne, Australia, June 1998. Introduction, Conference on Sexual Harassment Law, Yale Law School, February 1998. "Marriage and Public Policy: The Politicization of Marriage in the 1850s," Schlesinger Library, Radcliffe College, May 1997. Comment, "Association-Building in America," Organization of American Historians annual meeting, San Francisco, April 1997. "Writing American Women's History: Retrospect on Nineteenth Century Domesticity," Clarion University, Clarion, Pa., April 1997. "Against Equality: Mary Ritter Beard and Feminism," DePauw University, March 1997. "Marriage and Women's Citizenship: A Historical Excursion," N.Y.U. Law School, March 1997. Discussant, "One Woman, One Vote: Painting a 70-year Battle on a 2-hour TV Canvas," Berkshire Conference on the History of Women, June 1996, U.N.C. Chair, "International Feminism, 1840-1945," American Historical Association annual meeting, January 1996, Atlanta, Ga. The Gender of Citizenship and the 19th Amendment," keynote address, University of Texas 8th Biennial Graduate Student Historical Symposium, Austin, Oct.1995; Women's History Week lecture, Fitchburg State College, Fitchburg Mass., March 1996. "Effects of the 19th Amendment," Delaware Heritage Commission Conference on the 75th Anniversary of the 19th Amendment, Delaware State Univ., November, 1995. "Forming the Body Politic: Gender, Race, and Citizenship Traditions in the U.S., "John Dewey Lecture in the Philosophy of Law, Harvard Law School, October 1994; Jane Ruby Humanities Fund Lecture, Wheaton College, March 1995. "The Marriage Knot: Gender, Race and Citizenship Policy in the U.S., 1855-1934," UCLA Center for the Study of Women, October 1994. Chair and comment, "Debating Democracy in the 19th Century," annual meeting of the Organization of American Historians, Atlanta, GA, April 1994. "Justice for All? Marriage, Race, and Deprivation of Citizenship in the Early 20th-Century U.S.," Keck Lecture, Amherst College, February 1994; Harvard University, February 1994. "Marriage, Gender, and Public Order," Symposium of the Association for Women's History, Amsterdam, Holland, November 1993. "Early Education of Women," symposium on Uncovering Women's History in Museums and Archives, Litchfield (CT) Historical Society, October 1993. "Early 20th-century Feminism in Germany and the U.S. Compared," Suffrage Centenary Conference, Wellington, New Zealand, August 1993. "Reviewing the Private and the Public through Women's History," Conference for 20 Years of the Edith Kreeger Wolf Distinguished Visiting Professorship, Northwestern Univ., April 1993. "Marriage as/and Public Policy in the Late Nineteenth-Century U.S.," annual meeting of the Organization of American Historians, Anaheim, CA, ; Northwestern University History Department, Apr1993. "Against Equality: Mary Ritter Beard and Feminism," Conference on the 200th Anniversary of Wollstonecraft's Vindication of the Rights of Women, Sussex, England, Dec. 1992. "'Enlightenment Respecting Half the Human Race': Mary Ritter Beard and Women's History," Sophia Smith Collection Semi-Centennial, September 1992. "Women's History in Contemporary Perspective," Harvard University Women's History Week, Mar 1992. "Educating Women in the U.S.," Founders Day lecture, Mary Baldwin College, October 1991. "Feminism in the U.S. in the Early 20th Century in Comparative Perspective," German Association for American Studies annual conference, Muenster, Germany, May 1991. Comment, "Women and American Political Identity," conference on Political Identity in American Thought, Yale Univ., April 1991.
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"Slavery, Race, and the History of Women's Rights in the U.S.," Trenton State College, NJ, March 1991. Comment, "Contextualizing Feminism," annual meeting of the American Historical Association, New York City, December 1990. "The Political Isn't Personal: Mary Ritter Beard's View of Women's History," Center for American Culture Studies, Columbia U., October 1990. "Mary Ritter Beard and Women's History," N.Y. Public Library, Sept. 1989. Chair, "Power in the Early Twentieth Century," Organization of American Historians annual meeting, St. Louis, April 1989. "What's in a Name?: The Limits of Social Feminism," Boston U., Jan. 1989; Brandeis U., Sept. 1989. Panelist, "Feminist Theory," 10th Anniversary Celebration of the Women's Studies Program at Brandeis U., November 1988. "Reconsidering Individualism and 'Nature Herself' in the Era of Laissez-Faire Constitutionalism," Harvard U. History Department, April 1988. Panelist, "Individualism," N. Y. U. Humanities Center, March 1988. Afterword, "Masculinity in Victorian America," Barnard College, Columbia U., January 1988. Panelist, "Beyond Roles, Beyond Spheres: Thinking about Gender in the Early Republic," U. of Pennsylvania, December 1987. Chair, "Women in American Constitutional History at the Bicentennial," Annual Meeting of the American Hist. Assoc., Washington, D.C., December 1987. "Women's Rights: Unspeakable Issues in the Constitution," Association of Yale Alumni Faculty Seminar, September 1987, New Haven, CT; Brandeis U., March 1988; Second Annual Lowell Conference on Women's History, Lowell, MA, March 1988; Conference on the Constitution as Historical and Living Document, Duchess County Community College, April 1988; Richardson American Studies Lecture, Georgetown U., April 1988. "How Weird Was Beard? Mary Ritter Beard and American Feminism," Seventh Berkshire Conference on the History of Women, June 1987, Wellesley MA. "The Birth of Feminism," Women's Studies Program, Cornell U., March 1987. "Feminism and Women's Political Participation in the Early 20th Century," Conference on Women and Citizenship, Women Historians of the Midwest, St. Paul, MN, March 1987. "The Power of Communalism: Reflections through Women's History," Historic Communal Societies Conference, October 1986. Chair, "Women in the 1950s: An Interdisciplinary Exploration," Organization of American Historians annual meeting, N.Y., April 1986. "Feminism in the 1920s," Boston Area Feminist Colloquium, Northeastern U., January 1986. "History of Feminism," Institute for Policy Studies, Washington, D.C., May 1985. "Feminist Theory and Feminist Movements: The Past Before Us," Women's History Week, Harvard U., March 1985. "Problems of Feminism in the l920s: the Political Environment," Women's History Series, New York U., February 1985; American Studies Lecture, Smith College, March 1985; Harvard Law School Faculty Colloquium, May 1985. "Has Modern Woman Disrupted the Home? 1920s Answers," Wesleyan Center for the Humanities, October 1984. "Feminism and Women in Professional Occupations in the 1920s," American Studies lecture, Amherst College, February 1984. "Feminism in Transition, 1910-1930," Sixth Berkshire Conference on the History of Women, June 1984, Northampton, MA. Comment, "Nineteenth-Century Gender Conventions," Smith-Smithsonian Conference on Conventions of Gender, February 1984. "Definitions of Feminism in the Early Twentieth-Century United States," Whitney Humanities Center,
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Yale U., September 1983. "Challenging Myths of Victorian Womanhood," American Psychiatric Association Convention, New York City, May 1983. "Women's History and Feminism," Phi Beta Kappa Lecture, Sweet Briar College, February 1983; Sarah Lawrence College, March l983. "Reappraising the History of Feminism in the 1920s," American Studies Series, Boston College, February 1983; History Dept. Series, U. of Virginia, February l983; Hamilton College, April 1983; Trinity College, April 1983. "The Hundred Fragments: Feminism, the Woman Suffrage Coalition, and American Society," Whitney Humanities Center, Yale U., January 1983; History Colloquium Series, Princeton U., March 1984. "Women's Education Before 1837," panel, Conference on Women and Education: The Last 150 Years, Mt. Holyoke College, April 1982. "The Crisis in Feminism, 1910-1920," Radcliffe Research Scholars Series, Radcliffe College, May 1982; Women's Studies Series, Wesleyan U., October 1982. "Feminism and Women's History," Harvard U., Women's History Week, March 1982. "The Problem of Feminism in the 1920s," Isabel McCaffrey Lecture, May 1981, Harvard U.; American Civilization Dept., Brown U., November l98l; History and Women's Studies Series, U. of Michigan, March 1982; Center for European Studies, Harvard U., April 1982. Comment, "Consciousness and Society in New England, 1740-l840," Organization of American Historians annual meeting, April 1980, San Francisco, CA. "Women's History: Retrospect and Prospect," Harvard Divinity School History Colloquium, March 1980; U. of South Florida Women's Week, March 1980; American Assoc. for State and Local History, NE Regional Seminar, November 1980, New Haven, CT. "Women and Feminism in the 20th Century," Bunting Institute, Radcliffe College, October 1978. "Roundtable on Mary Ritter Beard," Fourth Berkshire Conference on the History of Women, August 1978, South Hadley, MA. "Ministers and Women in the Late l8th and Early l9th Century," Princeton Theological Seminary, March 1978. "New England Women's Work in the Early National Period," Historic Deerfield, MA, February 1978. Comment, "Sexuality and Ideology in l9th-century America," Southern Hist. Assoc. Conference, November 1977, New Orleans, LA. "Passionlessness: An Interpretation of Anglo-American Sexual Ideology, 1790- l840," History Dept. Colloquium, U. of Mass., April 1977; Rutgers U., March 1978; Marjorie Harris Weiss Lectureship, Brown U., March 1978. "Women and Religion in Early l9th-Century New England," History Department Colloquium Series, U.of Conn., February 1977; Old Sturbridge Village, March 1977. Chair and comment, "Comparative Perspectives on Sexual and Marital Deviance and the Law," Third Berkshire Conference on the History of Women, June 1978, Bryn Mawr, PA. "Adultery, Divorce, and the Status of Women in Revolutionary Massachusetts, "Conference on Women in the Era of the American Revolution, July, 1975, Washington, D.C.; Princeton U. Colloquium Series, November 1975; Boston State College Lecture Series on the American Revolution, November 1976. Young Women's Conversion in the Second Great Awakening," Second Berkshire Conference on the History of Women, November 1974, Cambridge, MA. Chair and comment, "Women in the Professions," First Berkshire Conference on the History of Women, March 1973, New Brunswick, N.J. PUBLIC SERVICE LECTURES:
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"Women's Rights in the 20th Century," week-long series of lectures, Gilder-Lehrman Institute for American History seminars for teachers, June 2008, 2009, 2011. What is Gender History? Symposium on Women, History Connections Teaching American History Grant, Rockford Public Schools, Rockford, Illinois, October 2007. Marriage and the State, Thursday Morning Club (for the benefit of Mt. Auburn Hospital), Feb. 2006. What Can Venturesome Women of the 1920s Tell Us Today? Linda Rosenzweig Memorial Lecture, Wellfleet Public Library, Wellfleet MA, August 2005. "Marriage and the Public Order in the History of the United States," 2005 American Studies Summer Institute, John F. Kennedy Library, July 2005. "Preserving Women's History at Radcliffe and Harvard," Committee on the Concerns of Women at Harvard, June 2005. "Women's Education in the 18th Century," Adams Historic Site, Quincy, MA, April, 2005. Moderator, "What Sort of a Right is Marriage?" Harvard University Human Rights Program, March 2005. "What is Gender History?" annual luncheon for the College Board, Organization of American Historians, annual meeting, San Jose, CA, April 2005. "What the State Has to Do with It: Changing Marriage," Democrats Abroad, Paris, Dec. 2003. "Marriage and the Law," invited discussion with Senior Matrimonial Lawyers, educational retreat, Troutbeck Conference Center, Amenia NY, October 2003. Marriage as a Public Institution in the United States, Harvard Neighbors, February 2003; Harvard Librarians group, February 2003. Looking at the World after 9/11 through a Womens History Lens, Radcliffe Seminars Final Conference, April 2002. Women as Workers and Citizens in the Twentieth Century, Institute for Emerging Civil Rights Leaders, Harvard Graduate School of Education, June 11, 2001. The Value of Womens Work: Historical, Public and Private Views, Bostonian Society, May 2001. Woman Suffrage: Why Did It Take So Long? and The Gender Structure of Citizenship, NEH Summer Institute for High School and Middle School Teachers on Womens Rights and Citizenship in American Thought, Ohio State Univ., July 2000. Education in Abigail Adams Time, Women and the American Revolution Lecture Series, Adams National Historical Site, Quincy, MA, June 2000. Women of Conscience in Politics, Maine Town Meeting, 50th anniversary of Sen. Margaret Chase Smiths Declaration of Conscience, June 1, 2000, Skowhegan, Maine. The History of Marriage, testimony and discussion before the Judiciary Committee, Vermont House of Representatives, January 2000. "Women as Citizens in the 20th Century," A Millennium Evening at the White House, Washington, D.C., March 1999. "Historians and Filmmakers: A Dialogue," Chatauqua .N.Y., August 1997. "Winning the Women's Ballot: Citizenship, World War, and the Woman Suffrage Campaign," U.S. Air Force Academy, Colorado Springs, August 1995. "The Beginnings of Women's Education in the U.S.," Witmer Lecture, Social Studies Dept., Hunter College High School, March 1995. "New Immigrants, New Women," Rebecca Plank Memorial Lecture, Milton Academy, March 1995. "The South and the Nation in the History of Women's Rights," Conference of Southern Humanities Foundations, Washington, D.C., May 1988. "Women's Rights: Unspeakable Issues in the Constitution," Judicial Seminar, N.Y. State Judiciary Continuing Education, July 1988.
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Exhibit B
Appendix Page 114
Bibliography Bank, Steven A. Anti-Miscegenation Laws and the Dilemma of Symmetry: The Understanding of Equality in the Civil Rights Act of 1875, University of Chicago Law School Roundtable 2:1 (1995), 303-344. Bardaglio, Peter W., Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (University of North Carolina Press, 1995). Basch, Norma. Framing American Divorce (Berkeley: University of California Press, 1999). Basch, Norma. In the Eyes of the Law: Women, Marriage and Property in NineteenthCentury New York (Ithaca: Cornell University Press, 1982). Blake, Nelson. The Road to Reno: A History of Divorce in the United States (New York: Macmillan, 1962). Burnham, Margaret. An Impossible Marriage: Slave Law and Family Law, Law and Inequality, 5 (1987), 187-225. Caldwell, Katherine. Not Ozzie and Harriet: Postwar Divorce and the American Liberal Welfare State, Law and Social Inquiry, 23:1 (Winter 1998), 39-40. Chused, Richard H. Married Womens Property Law: 1800-1850, Georgetown Law Journal 71:5 (June 1983), 1359-1425. Coontz, Stephanie, Marriage, A History: How Love Conquered Marriage (NY: Penguin Books 2006). Coontz, Stephanie, The Social Origins of Private Life: A History of American Families, 1600-1900 (London: Verso, 1988). Cornell University Law School Legal Information Institute. Marriage Laws of the Fifty States, District of Columbia and Puerto Rico. http://topics.law.cornell.edu/wex/table_marriage. Cott, Nancy F. Marriage and Womens Citizenship in the United States, 1830-1934, American Historical Review 103:5 (Dec. 1998), 1440-74. Cott, Nancy F. Public Vows: A History of Marriage and the Nation (Cambridge, Mass.: Harvard University Press, 2000). Ditz, Toby L., Property and Kinship: Inheritance in Early Connecticut (Princeton University Press, 1986). Dubler, Ariela. Governing Through Contract: Common Law Marriage in the 19th 1 App. 000138 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Century, Yale Law Journal 107 (April, 1998), 1885-1920. Dubler, Ariela. Wifely Behavior: A Legal History of Acting Married, The Columbia Law Review 100 (May 2000), 957-1021. Edwards, Laura F. Gendered Strife and Confusion: The Political Culture of Reconstruction (University of Illinois Press, 1997). Edwards, Laura F. The Marriage Covenant is at the Foundation of all Our Rights: The Politics of Slave Marriages in North Carolina after Emancipation, Law and History Review 14:1 (Spring 1996), 81-124. Fowler, David H. Northern Attitudes towards Interracial Marriage: Legislation and Public Opinion in the Middle Atlantic and the States of the Old Northwest, 1780-1930 (New York and London: Garland, 1987). Franke, Kathryn. Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, Yale Journal of Law & the Humanities 11:2 (Summer 1999), 251-309. Freedman, Estelle B. and John DEmilio, Intimate Matters: A History of Sexuality in America (2d ed. 1997). Glendon, Mary Ann. The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989). Glendon, Mary Ann. Abortion and Divorce in Western Law (1987). Grossberg, Michael. Crossing Boundaries: Nineteenth-Century Domestic Relations Law and the Merger of Family and Legal History, 1985 Am. B. Found. Res. J. 799 (1985). Grossberg, Michael. Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985). Hartog, Hendrik. Marital Exits and Marital Expectations in Nineteenth Century America, Georgetown Law Journal 80:1 (October 1991), 95-129. Hartog, Hendrik. Man and Wife (Cambridge: Harvard University Press, 2000). Hodes, Martha. White Women, Black Men: Illicit Sex in the 19th Century South (New Haven, Yale University Press, 1997). Howard, George Elliott. A History of Matrimonial Institutions Chiefly in England and the United States (The University of Chicago Press, 1904).

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Kerber, Linda K. No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill & Wang, 1998). Kessler-Harris, Alice. In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-century America (New York: Oxford, 2001). May, Elaine Tyler. Barren In the Promised Land: Childless Americans and the Pursuit of Happiness (Harvard University Press, 1996). May, Elaine Tyler. Homeward Bound: American Families in the Cold War Era (Basic Books, 2008). Pascoe, Peggy. What Comes Naturally: Miscegenation law and the Making of Race in America (New York: Oxford, 1999). Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society (Cambridge and New York, Cambridge University Press, 1988). Pleck, Elizabeth H. Celebrating The Family: Ethnicity, Consumer Culture, and Family Rituals (Harvard University Press, 2001). Riley, Glenda. Divorce: An American Tradition 65 (New York: Oxford University Press, 1991). Sayre, Paul. A Reconsideration of Husband's Duty to Support and Wifes Duty to Render Services, Virginia Law Review 29 (1943), 857-75. Shammas, Carole. Re-assessing the Married Womens Property Acts, Journal of Womens History 6:1 (Spring 1994), 9-30. Shammas, Carole. A History of Household Government In America (University of Virginia Press, 2002). Shammas, Carole. Anglo-American Household Government in Comparative Perspectives, WMQ, 3d ser., 52:1 (Jan. 1995), 104-44. Shanley, Mary L. Feminism, Marriage and the Law in Victorian England (Princeton, 1989). Shanley, Mary L. Making Babies, Making Families: What Matters Most in an Age of Reproductive Technologies, Surrogacy, Adoption, and Same-Sex Unwed Parents (Beacon, 2001). Shanley, Mary L. Marriage Contract and Social Contract in 17th- Century English Political Thought, The Family In Political Thought (J.B. Elshtain ed., 1982).

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Siegel, Reva B. The Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930, Georgetown Law Journal 82:7 (Sept. 1994), 2127-2211. Skocpol, Theda. Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Harvard University Press, 1992). Stanley, Amy Dru. From Bondage to Contract: Wage Labor, Marriage and the Market in the Age of Slave Emancipation (Cambridge University Press, 1998). Sugarman, Stephen D., and Herma Hill Kay, eds. Divorce Reform at the Crossroads (New Haven: Yale University Press, 1990). VanBurkleo, Sandra F. Belonging to the World: Womens Rights and American Constitutional Culture (New York: Oxford, 2001). Vernier, Chester G. American Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States . (Stanford: Stanford University Press 1931). vol I Introductory Survey and Marriage (to Jan. 1 1931); vol III, Husband and Wife (to Jan. 1, 1935). Wallenstein, Peter, Race, Marriage and the Law of Freedom: Alabama and Virginia, 1860-1960s, Chicago-Kent Law Review 70:2 (1994), 371-437. Warren, Joseph. Husbands Right to Wifes Services, Harvard Law Review 38 (Feb. 1925), pt. 1, 421-46, pt. 2, 622-50. Welke, Barbara. Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge University Press, 2010).
Cases Clark v. Clark, 44 Nev. 44 (1920). Loving v. Virginia 388 U.S. 1 (1967). Orr v. Orr, 440 U.S. 268 (1979). Perez v. Sharp, 198 P.2d 17 (Cal. 1948). Constitution, Statutes, Legislative Materials and Session Reports Nev. Const. art. 1, 21. Nev. Rev. Stat. 122.020. Nev. Rev. Stat. 122.110. 4 App. 000141 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Nev. Rev. Stat. 122A.100, et seq. Nev. Rev. Stat. 122A.010, et seq. Nev. Rev. Stat. 123.230. 1862 Nev. Stat., ch. 32, at 93. 1862 Nev. Stat., ch. 33, at 98-9. 1862 Nev. Stat., ch. 76, at 239-42. 1873 Nev. Stat., ch. 119, at 194. 1897 Nev. Stat, ch. 20, at 24. 1912 Rev. Laws of Nev., Vol. 2, at 1869. 1913 Nev. Stat., ch. 10, at 11. 1915 Nev. Stat., ch. 28, at 27. 1919 Nev. Stat., ch. 72, at 124. 1927 Nev. Stat., ch. 96, at 127. 1931 Nev. Stat., ch. 97, at 161. 1959 Nev. Stat., ch. 193, at 216. 1959 Nev. Stat., ch. 298, at 408. 1967 Nev. Stat., ch. 278 at 805. The Compiled laws of Nevada In Force From 1861-1900 (Inclusive) (compiled and annotated by Henry C. Cutting, 1900), Domestic Relations - Approved November 28, 1861, 94. Nevada Compiled Laws: Supplement 1943-1949, 325 (1950).
Other Materials Anderson, Rachel J. Timeline: African-American Legal History in Nevada (18612011), 20 Nevada Lawyer 8 (2012). 5 App. 000142 - Pls.' SJ Opp'n, Kitchen v. Herbert
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A Brief History of the Washoe County Bar Association: 1905-2005, 13 Nevada Lawyer 7. Pew Research Center report, released February 16, 2012 , "The Rise of Intermarriage: Rates, Characteristics Vary by Race and Gender," by Wendy Wang, Appendix 2, available at http://www.pewsocialtrends.org/2012/02/16/the-rise-ofintermarriage/7/#appendix-2-state-andregional-rates accessed 8-30-2012.

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Exhibit 4
Peggy A. Tomsic (3879) tomsic@mgpclaw.com James E. Magleby (7247) magleby@mgpclaw.com Jennifer Fraser Parrish (11207) parrish@mgpclaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually, KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Case No. 2:13-cv-00217-RJS Defendants. Honorable Robert J. Shelby DECLARATION OF CHARLOTTE J. PATTERSON, Ph.D.
I, Charlotte J. Patterson, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT 1. I am a Professor of Psychology in the Department of Psychology at the University of Virginia, in Charlottesville VA. I am also the Director of the interdisciplinary Women, Gender & Sexuality Program at the University of Virginia. I have knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2. My background, experience, and list of publications are summarized in my curriculum vitae, which is attached as Exhibit A to this report. 3. I earned a B.A. degree in Psychology from Pomona College in 1971, an M.A. in Psychology from Stanford University in 1972, and a Ph.D. in Psychology from Stanford University in 1975. 4. I joined the faculty of the Department of Psychology at the University of Virginia in 1975, and have remained a member of this faculty ever since. 5. I have authored more than 125 publications (i.e., articles or chapters) that have appeared either in peer-reviewed professional journals or in professional books published primarily for the readership of other professionals. I have written or edited 5 books in the fields of developmental psychology and the psychology of sexual orientation. 6. I have been a peer reviewer for many professional journals over the past 30 years, and have served as Associate Editor of the Merrill Palmer Quarterly of Human Development and as guest editor for two special issues of the journal Developmental Psychology. I sit on the editorial boards of several journals, including the Journal of Family Psychology. I have served as a peer reviewer for dozens of articles that address issues related to sexual orientation, parenting, and
child development. 7. Over the course of my career, I have pursued research on social and personal development among children and adolescents, with an emphasis on the familial and school contexts of human development. I have conducted research with lesbian and gay parents and their children; some of this research has focused on issues in child and adolescent development, and some has focused on issues related to sexual orientation and parenting. I am very familiar with the research on families headed by lesbian and gay individuals and couples. 8. I have been retained by counsel for the Plaintiffs in the above-entitled action as an expert in connection with the above-referenced litigation. I am being compensated for this effort at a rate of $300 per hour. I will be reimbursed for expenses in the event that I must travel in connection with my services. My compensation does not depend on the outcome of this litigation, the opinions that I express, or the testimony I provide. 9. In the past four years, I have provided expert legal services in two matters. The first, in which I provided consultation but not expert testimony, was Perry v. Schwarzenegger, Case No. 09-CV-2292, which concerned Californias ban on marriage by same-sex couples. The second, in which I submitted expert testimony by affadavit, was a child custody case, Lewandowski v. Donohoe, Case No. 2010-DR-08-1032, in the Family Court, Ninth Judicial Circuit, County of Berkeley, State of South Carolina. 10. In preparing this Declaration, I reviewed the Complaint in this case, and the materials listed in the attached Bibliography (see Exhibit B). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this Declaration, as additional support for my opinions. I have also relied upon my years of experience in this
field, as set out in my curriculum vitae (see Exhibit A), and on the materials listed therein. I. Summary of ultimate conclusions 11. Other things being equal, research has revealed that children and adolescents brought up by same-sex couples are as likely to be well-adjusted as are children brought up by oppositesex couples. Many studies of young people reared by same-sex couples conducted over the past 30 years by respected researchers and published in peer-reviewed journals conclude that children and adolescents of same-sex couples are as successful in psychological, emotional, and social terms as are similarly situated children of opposite-sex parents. Furthermore, researchers have also found that the same factors, as described below, affect the adjustment of children and adolescents, regardless of parental sexual orientation. 12. There is wide agreement among social scientists about the factors that account for the adjustment of children and adolescents; these include the qualities of childrens and adolescents relationships with their parents, the qualities of the relationship between the parents or significant adults in the childrens or adolescents lives, and the availability of economic and socioemotional resources. There is wide agreement among social scientists that these factors affect adjustment of children growing up in both traditional and non-traditional families. Parental sex and sexual orientation are not related to the ability to be a good parent or to the likelihood of healthy development among children or adolescents. In addition, no empirical support has emerged for the view that the presence of both male and female role models in the home promotes childrens adjustment or well-being. II. Factors that predict childrens and adolescents adjustment. 13. The term adjustment is used by psychologists to describe psychosocial well-being.
As such, the term adjustment refers to characteristics that allow children and adolescents to function well in their lives, including the absence of troublesome psychological symptoms and behavior problems. When children and adolescents are well-adjusted, they have the social skills to get along well with adults and peers, to function well in school and in the workplace, and to establish meaningful relationships. Maladjustment, in contrast, might reveal itself through behavior problems, such as aggressive behavior, or deficient social skills, such as an inability to establish or sustain meaningful relationships with other people. 14. Hundreds if not thousands of studies have examined the factors that are associated with healthy adjustment in children and in adolescents. Drawing on this large body of research, psychologists have reached consensus about factors that predict healthy development and adjustment. Among the factors that have been identified in this way are (a) the qualities of childrens and adolescents relationships with their parents or parental figures, (b) the qualities of relationships between parents and other significant adults, and (c) the availability of adequate economic and social resources. In general, children and adolescents who have access to adequate economic and social resources, who have warm and harmonious relationships with parents, and whose parents or parental figures have harmonious relationships with one another are more likely than others to be well-adjusted. Conversely, children and adolescents who live in conditions of poverty or social isolation, whose relationships with parents are distant, conflictual or lacking in warmth, and whose parents or parental figures are in conflict with one another are less likely than others to be well-adjusted. 15. When children or adolescents enjoy good relationships with their parents or parental figures, and regardless of parental sexual orientation, youngsters are less likely to show
psychological symptoms or maladjustment. Good parenting occurs when parents offer love, affection and warmth and also provide appropriate stimulation, guidance and limit-setting for their children and adolescents. Parental sensitivity, or the ability to understand and respond to social cues from children or adolescents is also related to quality of parent-child and parentadolescent relationships; when parents are sensitive to social cues from their children or adolescents, relationships are likely to be of higher quality. 16. Some differences among children and among adolescents are simply normal variations among people, and are not related to adjustment. As an example, intelligence has been extensively studied, but is not regarded as an aspect of adjustment or maladjustment. Other differences among people may arise because of cultural factors (e.g., individual versus collective orientation) or personality (e.g., introverted versus extroverrted). Not all differences between or among people reflect aspects of adjustment. III. Factors predicting healthy adjustment are the same for traditional and nontraditional families; and children and adolescents in nontraditional families are just as capable of healthy adjustment as those in traditional settings. 17. In the context of psychological research, the term traditional family refers to the type of family environment that was once considered to be the norm a middle-class family with a breadwinning father and a stay-at-home mother, married to each other, and rearing their biological children. Thus, non-traditional families involve any kind of variation from this expected or normative pattern. Included under the category of non-traditional families, then, are families in which fathers assume overall responsibility for childcare, families with employed mothers, families with two employed parents, families with single parents, and/or families that
rely on non-parental care for children (e.g., in childcare centers or in family daycare homes). By these criteria, the majority of families with children under the age of 18 in the United States today are non-traditional. 18. It was once believed that the traditional family provided an environment for childrearing that was superior to all others, and that traditional families were necessary in order for children and adolescents to show healthy adjustment. The results of fifty years of research on child and adolescent development, however, have challenged this belief. Such research has focused on the impact on children and adolescents of maternal employment, parental divorce, one parent families, stay-at-home father families, and families headed by same-sex couples. 19. Regardless of whether children or adolescents are reared in traditional or nontraditional family environments, research has shown that the important predictors of adjustment remain the same. Parental affection, consistency, responsiveness, and emotional commitment, as well as the quality and character of relationships between parents or parental figures, and the availability of economic and other resources have repeatedly been shown to be important predictors of child and adolescent adjustment, in non-traditional as in traditional family environments. Results of a considerable body of psychological research over many years have revealed that children and adolescents who grow up in non-traditional family environments can be as well-adjusted as those who grow up in traditional families. A. Difficulties in one-parent families have nothing to do with parent gender or sexual orientation; the absence of a father or of a mother, by itself, is not a predictor of healthy adjustment. 20. Substantial research on the impact of parental separation and divorce on children and
adolescents has revealed that, although some children and adolescents whose parents divorce show good adjustment, others are more likely than those in two-parent homes to show problems in adjustment. Results of research reveal that conflict between parents and reduced access to resources are major reasons why children of divorce are likely to experience problems in adjustment. These are familiar factors that are related to adjustment among other children and adolescents, not special factors related specifically to parental separation or divorce. 21. The causes of adjustment difficulties for children of divorce are consistent with the predictors of adjustment overall. Most children live with their mothers after divorce, and families headed by single mothers often suffer financial hardship relative to two-parent families. Many divorces expose children and adolescents to conflict between parents, both before and after the divorce, and many also involve diminished contact with a non-residential parent over time. In addition, divorce often involves stressful transitions for children such as moving to a new home, new neighborhood, and/or new school. Many children lose one of their supportive parental relationships after parents divorce, and may also lose financial support from the nonresidential parent. These factors are correlated with problems in adjustment among children from traditional and non-traditional families. B. Male and female parents can be equally competent; the absence of male or female parents in the home does not impair development. 22. For many years, it was assumed that the absence of a male figure accounted for greater problems in adjustment among children and adolescents in mother-headed homes. Results of a substantial body of research have shown, however, that it is not the absence of a male figure in itself that is important for development; instead, it is the overall qualities of the
childs or adolescents relationships with parents, the qualities of the parents relationships with one another, and the overall adequacy of resources available to the family that are most important. It is now well-established by psychological research that both men and women have the capacity to be good parents, and that having parents of both genders is not essential to childrens and adolescents healthy development or good adjustment. 23. Results of extensive research reveal that, for most people, parenting skills are learned after the birth of the first child. At the point when children come into the family, at birth or via adoption, most men and most women are equally skilled (or unskilled) as parents. In our society, women spend more time than men in parenting roles, and so they become more skilled over time. The disparity reflects womens greater experience, not any biologically given capacity. When men spend more time in parenting roles, they too become more skillful. A persons sex does not determine his or her capacity for success as a parent. 24. There are stylistic differences in the ways that most men and most women tend to interact with infants and children, but these are not related to adjustment. Results of research show that men are more likely to play with children in physically active, playful and unpredictable ways, whereas women are more likely to play quietly, in more soothing and predictable ways. These differences are not true of all men and women, however, nor is it harmful when parents do not assume traditional gender roles when interacting with their children. 25. Both male and female adults can adopt sensitive or authoritative parenting styles. When fathers are primary caregivers for their children, the style of interaction between father and child often begins after a short time to look like traditional mother-child interactions. Some
differences in parenting style may thus be a function of who serves as primary versus secondary parent in a particular family. Many children do not have parents who offer both of these parenting styles, and this has not been found to affect their adjustment or development. There is no evidence that presence in the home of both male and female role models affects child or adolescent development or adjustment. IV. Research specific to parenting by same-sex couples demonstrates that the children and adolescents of same-sex parents are just as well-adjusted as those with different-sex parents. A. Based on a significant and well-respected body of research, the scientific community has reached consensus that parental sexual orientation does not affect adjustment. 26. A considerable amount of research has examined the adjustment of children and adolescents who are growing up with lesbian or gay parents and/or same-sex couples. This body of work consists of more than 50 peer-reviewed empirical journal articles, and many additional articles and book chapters intended for professional audiences. 27. Results of research in this area are consistent with and support the findings of the broader body of research on child and adolescent development in both traditional and nontraditional families. The results show that adjustment of children and adolescents is associated with the qualities of their relationships with parents, the qualities of relationships between parents or parental figures, and the resources available to families. 28. The results of this research also show that adjustment of children and adolescents is unrelated to the gender or sexual orientation of the parent(s). Research comparing adjustment
among children and adolescents of same-sex parents with that among their peers with oppositesex parents has consistently shown that children and adolescents in the two groups do not differ in their levels of adjustment. Researchers have found children and adolescents of same-sex parents to be as emotionally healthy, as well-behaved, and as socially and educationally successful as their peers who have opposite-sex parents. The idea that there is an optimal gender mix of parents has received no empirical support from psychological research. The notion that children or adolescents with same-sex parents suffer developmental disadvantages due to their parents sexual orientation has likewise gone without empirical support. 29. Some observers have described a 2012 article by Mark Regnerus as providing evidence that runs counter to the social science consensus summarized above. However, this is an incorrect characterization of Regnerus work, which actually allows no such conclusion. Regnerus did not actually study individuals reared by same-sex partners. In the Regnerus study, an individual was deemed to have a lesbian mother or a gay father if he or she answered affirmatively to the question: From when you were born until age 18 (or until you left home to be on your own), did either of your parents ever have a romantic relationship with someone of the same sex? Most of the individuals identified in this way were offspring of failed heterosexual marriages and had spent very little if any time living in households headed by same-sex couples. The journal in which the article was published has since published an audit finding that this fact alone should have precluded publication of the work. See http://chronicle.com/blogs/percolator/controversial-gay-parenting-study-is-severely-flawedjournals-audit-finds/30255. 30. In addition, most of the lesbian mother and gay father participants in the
Regnerus work were in families that underwent parental separations and divorces, which are known correlates of adjustment difficulties. In contrast, Regnerus excluded any participants whose opposite-sex parents had undergone separation or divorce. Thus, the main conclusion warranted by the study seems to be the well-established fact that children of divorce are more likely than those in stable family situations to experience problems in adjustment. In summary, Regnerus work is not relevant to the questions discussed here because he did not study the adjustment of children or adolescents reared by same-sex parents at all. 31. A new study by Allen (High school graduation rates among children of same-sex households, in Review Econ. Household, 2013), presents data that also purport to discredit the consensus, but also fail to do so. This study examined high school graduation rates among young adults in Canada, and reported that those who described at least one parent as gay or lesbian had lower rates of high school graduation than did their peers with continuously married heterosexual parents. This comparison is not relevant here, however, because almost all the parents characterized as gay or lesbian had also undergone divorce or separation, which is a known correlate of school problems, whereas other parents were more likely to be continuously married. Thus, the main conclusion that would appear to be warranted on the basis of Allens data is that young adults whose biological parents divorce or separate are also likely to report lower educational attainment than their peers with continuously married parents. This conclusion is already well-established, and it has nothing to do with parental sexual orientation. 32. In summary, there is a strong consensus among social scientists that parental sexual orientation is unrelated to adjustment among children and adolescents. Many mainstream professional organizations representing social scientists, medical professionals, and child welfare
advocates have issued statements confirming their belief that same-sex parents are as effective as opposite-sex parents in rearing well-adjusted children and adolescents. These organizations include the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the American Medical Association, the American Sociological Association, the National Association of Social Workers, and the Child Welfare League of America. As the American Sociological Association stated in its 2013 Amicus brief in Hollingsworth v. Perry, whether a child is raised by same-sex or opposite-sex parents has no bearing on a childs well-being. B. Studies identifying differences in the children or adolescents of same-sex parents have identified only normal variations, and not differences in adjustment. 33. Like children and adolescents in other non-traditional families, children and adolescents with same-sex parents have sometimes been found to hold less sex-stereotyped beliefs, and to be more open in their views of societal norms and standards about appropriate behavior for males and females. For instance, some studies of young children found that girls reared by lesbian mothers may be more likely than their peers reared by heterosexual mothers to play with toy trucks as well as with dolls, and to think that being a scientist or a doctor is an appropriate aim for a girl as well as for a boy. Some developmental psychologists once viewed adherence to sex stereotypes as a part of adjustment, but this view has been largely abandoned by scholars of human development. Differences seen in sex-stereotyped beliefs and behavior as a function of parental sexual orientation are not differences in adjustment. Researchers have found that children and adolescents reared by same-sex parents do not differ from those reared by
opposite-sex parents in their sexual orientation in adult life. There is likewise no evidence for differences in gender identity (i.e., the internal sense of oneself as male or female). C. The methodology of the research examining same-sex parents is standard, reliable, and accepted in the field. 34. Social scientists use many different kinds of research methods and research designs, and they collect many types of data. Developmental psychologists most often emphasize intensive examination of relatively small numbers of individuals, often against the background of social relationships and contextual concerns. Developmental psychologists rarely use research methods based on statistically representative national samples. Such large-scale survey methods, which are often used by sociologists and demographers, are often lacking in the fine detail required to evaluate psychological hypotheses. It is common for developmental psychologists to use what are called convenience samples, and to study those samples in an intensive manner, rather than to study large samples at a more superficial level. 35. The methodologies employed in the major studies of same-sex parents and their children meet standards for research in the field of developmental psychology. A rigorous process of peer review is used to evaluate methods and standards of research for every manuscript that has been submitted for publication. Established scholars in individual disciplines conduct anonymous reviews, evaluating the adequacy of methods, data analyses and conclusions; only after holding up to this type of scrutiny can a research article be published in a peer-reviewed journal. 36. The studies specific to same-sex parents from which I draw my conclusions were published in leading journals in the field of child and adolescent development, such as Child
Development, Developmental Psychology, and the Journal of Child Psychology and Psychiatry. These are the three flagship peer-reviewed journals in the field of Developmental Psychology. Most of the studies on which I rely appeared in these (or similar) rigorously peer-reviewed and highly selective journals. The standards of these journals represent expert consensus on generally accepted social science standards for research on child and adolescent development. In order to be published in these journals, studies were required to undergo a rigorous process of peer review. Having survived this process, they constitute the type of research that members of the respective professions consider reliable. Overall, the research on families formed by samesex couples is consistent with standards in the relevant fields, and it produces reliable conclusions. D. Data concerning one-parent families does not support conclusions about the preferred gender of parents. 37. To support their opinions that children need both mothers and fathers, and also that heterosexual couples make the best parents, advocacy groups that oppose parenting by same-sex couples sometimes cite studies showing that children in one-parent families are at greater risk for maladjustment than children in two-parent families. It is inaccurate to use research into oneparent families in this way, because it typically does not assess the impact of parental gender or sexual orientation at all. 38. Studies on one-parent families generally compare one-parent and two-parent heterosexual parent families. The studies usually do not include any families headed by lesbian or gay parents. For this reason, it is not appropriate to attribute differences resulting from number of parents or differential access to resources to parental gender or sexual orientation. It is
also not appropriate to draw conclusions about child development in families headed by lesbian or gay parents from studies that do not include any children with lesbian or gay parents. For these reasons, data from studies of one- and two-parent families are generally irrelevant to questions about adjustment of children and adolescents with same-sex parents. V. Many children and adolescents with same-sex parents already live in Utah, and they would likely benefit if their parents were permitted to marry. 39. The benefits of marriage for children and families can include legal protections, economic benefits, and social legitimacy. There is no reason to believe that these benefits would be of any less value to families formed by same-sex as compared to opposite-sex couples. Many lesbians and gay men are parents, and it is in the best interests of the children for same-sex parents to have equal access to marriage and to the benefits, protections and legitimacy it affords. The failure to recognize marriages of same-sex couples may convey to children that their parents relationships are less valid, important, or legitimate than those of opposite-sex couples whose marriages are recognized in law. For these reasons, children and adolescents with samesex parents would likely benefit if their parents were permitted to marry. 40. According to estimates based on 2008 data from the U. S. Census Bureau, there were 3,861 same-sex couples living in Utah, and 30% of them were raising children under the age of 18. Households headed by same-sex couples raising children reported that they had, on average, 2.5 children. Thus, in 2008, approximately 2,900 of Utahs children under 18 years of age were believed to be living in households headed by same-sex parents. For the reasons given above, these children would likely benefit if their parents were permitted to marry.
21st
Exhibit A
September, 2013
Vita
CHARLOTTE J. PATTERSON
patterson@virginia.edu http://people.virginia.edu/~cjp/ Dept. of Psychology - Gilmer Hall University of Virginia P.O. Box 400400 Charlottesville VA 22904 (434) 924-0664, voice (434) 982-4766, fax Education 1971 1972 1975 B.A., with honors, Psychology, Pomona College M.A., Psychology, Stanford University Ph.D., Psychology, Stanford University Women, Gender & Sexuality Program Minor Hall University of Virginia P. O. Box 400172 Charlottesville VA 22904 (434) 982-2962, voice (434)924-6969, fax
Research Interests Developmental psychology, family psychology, psychology of sexual orientation Sexual orientation and human development in context of family lives Child development, reproductive technology, law, and public policy Child, adolescent, and adult development in family, peer, and school contexts Current Employment Professor - Department of Psychology and Center for Children, Families and the Law, University of Virginia Director Women, Gender & Sexuality Program, College of Arts & Sciences, University of Virginia Employment History 1969 National Institutes of Health Summer Research Fellow, working under the direction of Dr. Richard F. Thompson, Department of Psychobiology, University of California at Irvine. United States Public Health Service Pre-Doctoral Trainee, Department of Psychology, Stanford University. National Science Foundation Pre-Doctoral Fellow, Department of Psychology, Stanford University Assistant to Associate to Full Professor, Department of Psychology, University of Virginia
1971 - 1972
1972 - 1975
1975 -
Employment History (continued) 1989 - 1990 Sesquicentennial Fellow, University of Virginia and Visiting Scholar, Department of Psychology and Beatrice Bain Research Group, University of California, Berkeley Sesquicentennial Fellow, University of Virginia (Spring 1997 only) Sesquicentennial Fellow, University of Virginia Distinguished Visiting Fellow, Institute for Advanced Study, La Trobe University, Melbourne Williams Distinguished Research Fellow, Williams Institute, UCLA School of Law Sesquicentennial Fellow, University of Virginia Director, Women Gender & Sexuality Program, University of Virginia
1996 - 1997 2003 - 2004 2007 2008 - 2009 2009 - 2010 2011 -
Awards 1996 Distinguished Scientific Contribution Award, American Psychological Association Division 44 (Society for Psychological Study of Lesbian and Gay Issues) Mental Health Professional Group Prize, American Society for Reproductive Medicine, for paper entitled, "Psychosocial Development Among Children Conceived Via Donor Insemination by Lesbian and Heterosexual Mothers", by Raboy, Chan & Patterson. University of Virginia Teaching + Technology Initiative Fellowship to redesign course materials for Psychology 250 (Introductory Child Psychology) Outstanding Achievement Award, American Psychological Association, Committee on Lesbian, Gay and Bisexual Concerns University of Virginia Faculty Senate Initiative on Excellent Teaching small grant to develop multimedia resources for Psychology 250 (Introductory Child Psychology) Distinguished Scientific Contribution Award, Georgia State Psychological Association, Division H, for research on sexual orientation and human development Carolyn Attneave Diversity Award, American Psychological Association Division 43 (Family Psychology), for contributions that advance the understanding of and integration of diversity into Family Psychology Society for Research in Child Development, Top Ten Most Downloaded Papers of the Year for the journal Child Development, paper entitled, Psychosocial adjustment and school outcomes of adolescents with same-sex parents, by Wainright, Russell, and Patterson (ranked 2nd among the top ten)
1996
1996 - 1997
1997
1998 - 1999
1999
2002
2005
Awards (continued) 2006 Bernard Mayes Award for Distinguished Service to the Lesbian, Gay, Bisexual and Transgender Communities at the University of Virginia, Serpentine Society (University of Virginia Lesbian and Gay Alumni Association) Distinguished Contributions to Research in Public Policy Award, American Psychological Association Laura Brown Award for Outstanding Contributions in Advancing Lesbian and Bisexual Womens Psychology, Society for the Psychology of Women (American Psychological Association, Division 35) OUTstanding Virginian Award, Equality Virginia (statewide lobbying organization for LGBT concerns in the Commonwealth of Virginia) Outstanding Book of the Year Award, American Psychological Association Division 44 (Society for Psychological Study of Social Issues), for Handbook of Psychology and Sexual Orientation.
2009
2011
2013
2013
Memberships Fellow American Psychological Association (APA) Division 1: Society for General Psychology Division 7: Developmental Psychology (Fellow) Division 9: Society for Psychological Study of Social Issues (Fellow) Division 35: Society for the Psychology of Women Division 41: American Psychology-Law Society Division 43: Family Psychology (Fellow) Division 44: Society for Psychological Study of Lesbian, Gay & Bisexual Issues (Fellow) Society for Research in Child Development (SRCD) Association for Psychological Science (APS) National Council on Family Relations (NCFR)
Member Fellow Member
Editorial Experience 1992 - 1994 Guest Editor, Developmental Psychology. Special Issue on Sexual Orientation and Human Development (January 1995 issue) Associate Editor, Merrill-Palmer Quarterly Guest Editor, Developmental Psychology. Special Section on Sexual Orientation Across the Life Span (with Suniya Luthar and Ritch Savin-Williams) (January 2008 issue)
1997 - 2000 2006 - 2008
Editorial Boards 1977 - 1988 1981 - 1982 1980 - 1997 1989 - 1999 1992 - 2004 1994 - 2001 1996 - 2001 1997 2000 - 2005 2001 -2010 Editorial board, Child Development Editorial board, Developmental Psychology Editorial board, Merrill-Palmer Quarterly Editorial board, Journal of Social and Personal Relationships Editorial board, Developmental Psychology Editorial board, Journal of Marriage and the Family Editorial board, Journal of the Gay and Lesbian Medical Association Editorial board, Journal of Family Psychology Editorial board, Parenting: Science and Practice Editorial board, Contemporary Perspectives on Lesbian, Gay, and Bisexual Psychology (book series published by the American Psychological Association) Editorial board, Journal of GLBT Family Studies International Advisory Group, Psychology of Sexualities Review Editorial board, Psychology and Sexuality Editorial board, Sexuality Research and Social Policy Editorial board, LGBT Health Editorial board, Psychology of Sexual Orientation and Gender Diversity
2003 2004 2010 2011 2013 2013 -
Professional Activities 1978 1979 1980 1980 - 1982 Program Committee, Southeastern Conference on Human Development Member, APA (Division 7) Boyd McCandless Award Selection Committee Program Committee, Southwestern Society for Research in Human Development Program Committee, Southeastern Conference on Human Development
Professional Activities (continued) 1981 - 1982 1983 1983 1983 - 1984 1984 Member, APA Division 7 Public Information Committee Program Committee, biennial meetings of the SRCD Program Committee, annual meetings of the APA (Division 7) Member, Nominations Committee, APA (Division 7) Program Committee, Southeastern Conference on Human Development and annual meetings of the APA (Division 7) Program Committee, biennial meetings of the SRCD Program Committee, annual meetings of the APA (Division 7) Member, Advisory Board, Evelyn Hooker Center for Gay and Lesbian Mental Health, Department of Psychiatry, University of Chicago Member, APA (Division 43) Committee on Lesbian and Gay Family Issues Invited Participant, APF Placek Fund Conference to create a Research Agenda for Lesbian and Gay Psychology, Chicago Member, APA (Division 7) Dissertation Award selection committee Program Committee, annual meetings of the APA (Division 44) Co-organizer, conference on Lesbian, Gay, and Bisexual Identities and Families: Psychological Perspectives, Pennsylvania State University Contributing author, Lesbian and Gay Parenting: A Resource for Psychologists, published by the American Psychological Association. Wrote summary of research. Participant, Roundtable on Family Issues, National Gay and Lesbian Task Force, Washington, D. C. Panelist, NSF Graduate Research Fellowship Program, Psychology Panel Co-organizer, conference on Research on Lesbian, Gay and Bisexual Youths: Implications for Developmental Intervention, Pennsylvania State University Chair, APA (Division 7) Dissertation Award selection committee Member, Academic Advisory Board, Institute for Gay and Lesbian Strategic Studies
1985 1991 1993 - 1998
1993 - 1998 1994
1995 1995 1995
1995
1995
1996 1996
1996 1996 - 2002
Professional Activities (continued) 1996 1997 Reviewer, APA Dissertation Research Awards Program Presented testimony on behalf of the American Psychological Association to the Institute of Medicine / National Academy of Sciences Panel on Lesbian Health Research Methodology, Washington, D.C. Member, Publication Committee, Society for Research in Child Development Member, APA Division 44 Fellows selection committee Chair, Selection Committee - Editor for Social Policy Reports, published by the Society for Research in Child Development Invited Participant, Workshop on Lesbian Health, sponsored by the U. S. Department of Health and Human Services Office on Womens Health, by the National Institutes of Health Office of Research on Womens Health, and other agencies, Washington DC, March 2000. Program Committee, Biennial Meetings of the Society for Research in Child Development Invited Participant, Workshop to develop a policy agenda for gay, lesbian, bisexual and transgender issues in education, convened by the National Gay and Lesbian Task Force and the Kevin J. Mossier Foundation, Minneapolis, October 2002. Program Committee, Biennial Meetings of the Society for Research in Child Development Member, APA Division 7 Fellows selection committee Interim Member, NIH Study Section, Risk Prevention and Health Behavior (RPHB-1) Member, APA Working Group on Same-Sex Families and Relationships (this group conceptualized and wrote resolutions on Marriage of Same-Sex Couples and on Same-Sex Relationships and Families that became APA policy in 2004) Co-Author, Fact Sheet on Marriage of Same-Sex Couples, produced by the National Council on Family Relations (NCFR) Contributing author, Lesbian and Gay Parenting: A Resource for Psychologists, published by the American Psychological Association. Wrote summary of research. Member, NIH Study Section, Psychosocial Development, Risk and Prevention (PDRP, formerly RPHB-1) President-Elect (2004-2005), President (2005-2006), and Past-President (2006-2007), APA Division 44 (Society for Psychological Study of Lesbian, Gay and Issues)
1997 - 2001 1998 - 2000 1999
2000
2000 - 2001 2002
2002 - 2003 2002 - 2004 2003 2004
2004
2004 - 2006
2004 - 2007
2004 - 2007
Professional Activities (continued) 2005 Member, Academic Advisory Board, Family Equality Council (formerly called Family Pride, Inc. a national organization for lesbian, gay, bisexual and transgender parents and their children) Member, SRCD Task Force on Cultural & Contextual Diversity Member, National Advisory Board, Rockway Institute (a nonprofit group organized to promote research on lesbian, gay, bisexual and transgender issues in the public interest) Chair, SRCD Task Force on Sexual Minority Issues Member, Fellows Selection Committee, Society for Psychological Study of Social Issues (SPSSI) Member, Academic Advisory Panel, Williams Institute (research institute focused on sexual orientation and law), UCLA Law School Senior Tutor, First International Lesbian, Gay, Bisexual, and Transgender (LGBT) Psychology Summer Institute, Department of Psychology, University of Michigan, Ann Arbor MI. Member, Search Committee, Editor for Journal of Family Psychology Member, Program Committee, Biennial Meetings of the Society for Research in Child Development (SRCD) Chair, APA Division 44 Committee on Special Awards Program Scientist and Faculty Member, Center for Population Research in LGBT Health at the Fenway Institute, Fenway Health, Boston. Member, Advisory Committee for Wayne F. Placek fund, American Psychological Foundation Member, Committee on Lesbian, Gay, Bisexual and Transgender (LGBT) Health Issues & Research Gaps, United States Institute of Medicine (IOM), Board on the Health of Select Populations Member, APA Committee on Legal Issues (COLI) Member, APA Division 44 Transgender Research Award Selection Committee Senior Tutor, 2nd International Lesbian, Gay, Bisexual and Transgender (LGBT) Psychology Summer Institute, Department of Psychology, University of Michigan, Ann Arbor MI Member, United States Census, National Advisory Committee on Racial, Ethnic, and Other Populations
2005 - 2006 2006 -
2007 - 2009 2007 - 2009 2008 -
2008
2008 2008 - 2009
2009 - 2011 2009 -
2009 - 2011 2009 - 2011
2009 2012 2010 2010
2012 2014
Publications Books D'Augelli, A. R., & Patterson, C. J. (Eds.) (1995). Lesbian, Gay and Bisexual Identities Over the Lifespan: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J., & D'Augelli, A. R. (Eds.) (1998). Lesbian, Gay and Bisexual Identities in Families: Psychological Perspectives. New York: Oxford University Press. D'Augelli, A. R., & Patterson, C. J. (Eds.) (2001). Lesbian, Gay and Bisexual Identities Among Youth: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J. (2008). Child Development. Boston: McGraw-Hill. Shorter version also published as: Patterson, C. J. (2008). Infancy and Childhood. Boston: McGraw-Hill. Patterson, C. J., & DAugelli, A. R. (Eds.) (2013). Handbook of Psychology and Sexual Orientation. New York: Oxford University Press. Multimedia Materials Patterson, C. J. (2000). Multimedia Courseware for Child Development. Boston: McGraw-Hill. Articles and Chapters Thompson, R.F., Mayers, K.S., Robertson, R.T., & Patterson, C.J. (1970). Number coding in association cortex of the cat. Science, 168, 271 - 273. Mischel, W., Jeffrey, K.M., & Patterson, C.J. (1974). The layman's use of trait and behavioral information to predict behavior, Journal of Research in Personality, 8, 231 - 242. Patterson, C.J. & Mischel, W. (1975). Plans to resist distraction. Developmental Psychology, 11, 369 - 378. Patterson, C.J. & Mischel, W. (1976). Effects of temptation-inhibiting and task-facilitating plans on self-control. Journal of Personality and Social Psychology, 33, 209 - 217. Mischel, W. & Patterson, C.J. (1976). Structural and substantive elements of effective plans for self-control. Journal of Personality and Social Psychology, 34, 942 - 950. Cosgrove, J.M. & Patterson, C.J. (1977). Plans and the development of listener skills. Developmental Psychology, 13, 557 - 564. Sagotsky, G., Patterson, C.J., & Lepper, M.R. (1978). Training children's self-control: A field experiment in self-monitoring and goal-setting in the classroom. Journal of Experimental Child Psychology, 25, 242 - 253.
Cosgrove, J.M. & Patterson, C.J. (1978). Generalization of training for children's listener skills. Child Development, 49, 513 - 516. Patterson, C.J. (1978). Teaching children to listen. Today's Education, 67 (April-May), 52 - 53. Reprinted in Speakers and Writers Sourcebook: Current Topics in Education (1979). Washington, D.C.: National Education Association. Mischel, W. & Patterson, C.J. (1978). Effective plans for children's self-control. In W. Andrew Collins (Ed.), Minnesota Symposia on Child Psychology, Volume 11. Hillsdale, N.J.: Lawrence Erlbaum Associates. Patterson, C.J., Massad, C.M., & Cosgrove, J.M. (1978). Children's referential communication: Components of plans for effective listening. Developmental Psychology, 14, 401 - 406. Patterson, C.J. & Carter, D.B. (1979). Attentional determinants of children's self-control in waiting and working situations. Child Development, 50, 272 - 275. Cosgrove, J.M. & Patterson, C.J. (1979). Adequacy of young speakers' encoding in response to listener feedback. Psychological Reports, 45, 15 - 18. Carter, D.B., Patterson, C.J., & Quasebarth, S.J. (1979). Development of the ability to use plans for self-control. Cognitive Therapy and Research, 3, 407 - 413. Patterson, C.J. & Massad, C.M. (1980). Facilitating referential communication among children: The listener as teacher. Journal of Experimental Child Psychology, 29, 357 - 370. Patterson, C.J., Cosgrove, J.M., & O'Brien, R.G. (1980). Nonverbal indicants of comprehension and noncomprehension in children. Developmental Psychology, 16, 38 - 48. Kister, M.C. & Patterson, C.J. (1980). Children's conceptions of the causes of illness: Understanding of contagion and use of immanent justice. Child Development, 51, 839 - 846. Kotsonis, M.E. & Patterson, C.J. (1980). Comprehension monitoring in learning disabled children. Developmental Psychology, 16, 541 - 542. Patterson, C.J. & Kister, M.C. (1981). The development of listener skills for referential communication. In W. Patrick Dickson (Ed.), Children's Oral Communication Skills. New York: Academic Press. Patterson, C.J., O'Brien, C., Kister, M.C., Carter, D.B., & Kotsonis, M.E. (1981). Development of comprehension monitoring as a function of context. Developmental Psychology, 17, 379 - 389. Patterson, C.J. (1982). Self-control and self-regulation in childhood. In T. Field, A. Huston et al., (Eds.), Review of Human Development. New York: Wiley. Patterson, C.J. & Roberts, R.J., Jr. (1982). Planning and the development of communication skills. In D. Forbes and M.T. Greenberg (Eds.), New Directions for Child Development: Children's Planning Strategies. San Francisco: Jossey-Bass.
10
Carter, D.B. & Patterson, C.J. (1982). Sex roles as social conventions: The development of children's conceptions of sex-role stereotypes. Developmental Psychology, 18, 812 - 824. Roberts, R.J., Jr. & Patterson, C.J. (1983). Perspective-taking and referential communication: The question of correspondence reconsidered. Child Development, 54, 1005 - 1014. Patterson, C.J. (1984). Development of prosocial and aggressive behavior. In M.H. Bornstein and M.E. Lamb (Eds.), Developmental Psychology. Hillsdale, N.J.: Lawrence Erlbaum Associates. Patterson, C.J. (1985). Review of Harris and Liebert, The Child: Development from Birth through Adolescence. Contemporary Psychology, 30, 996. Patterson, C.J. (1985). Review of Making an Issue of Child Abuse: Agenda Setting for Social Problems, by Barbara J. Nelson. American Journal of Education, 94, 125 - 127. Patterson, C.J. (1987). Wittgenstein, Psychology, and the Problem of Individuality. In M. Chapman and Roger A. Dixon (Eds.), Meaning and the Growth of Understanding: Wittgenstein's Significance for Developmental Psychology. New York: Springer-Verlag. Patterson, C. J., Cohn, D. A., and Kao, B. T. (1989). Maternal warmth as a protective factor against risks associated with peer rejection among children. Development and Psychopathology, 1, 21 - 38. Patterson, C. J., Kupersmidt, J. B. & Vaden, N. A. (1990). Income level, gender, ethnicity, and household composition as predictors of children's school-based competence. Child Development, 61, 485 - 494. Patterson, C. J., Kupersmidt, J. B. & Griesler, P. C. (1990). Children's perceptions of self and of relationships with others as a function of sociometric status. Child Development, 61, 1335 - 1349. Cohn, D. A., Patterson, C. J. & Christopoulos, C. (1991). The family and children's peer relations. Journal of Social and Personal Relationships, 8, 315 - 346. Patterson, C. J., Vaden, N. A. & Kupersmidt, J. B. (1991). Family background, recent life events, and peer rejection during childhood. Journal of Social and Personal Relationships, 8, 347 - 361. Kupersmidt, J. B. & Patterson, C. J. (1991). Childhood peer rejection, aggression, withdrawal, and perceived competence as predictors of self-reported behavior problems in preadolescence. Journal of Abnormal Child Psychology, 19, 427 - 449. Patterson, C. J., Vaden, N. A., Griesler, P. C. & Kupersmidt, J. B. (1991). Income level, gender, ethnicity, and household composition as predictors of children's peer companionship outside of school. Journal of Applied Developmental Psychology, 12, 447 - 465. Klein, J. D., Forehand, B., Oliveri, J., Patterson, C. J., Kupersmidt, J. B. & Strecher, V. (1992). Candy cigarettes: Do they encourage children's smoking? Pediatrics, 89, 27 - 31. Patterson, C. J. (1992). Children of lesbian and gay parents. Child Development, 63, 1025 - 1042.
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Reprinted in: M. E. Hertzig & E. A. Farber (Eds.) (1994). Annual Progress in Child Psychiatry and Child Development, 1993 (pp. 33 - 62). New York: Brunner/Mazel. Patterson, C. J., Griesler, P. C., Vaden, N. A. & Kupersmidt, J. B. (1992). Family economic circumstances, life transitions, and children's peer relations. In R. D. Parke & G. W. Ladd (Eds.), Family-Peer Relationships: Modes of Linkage. Hillsdale, NJ: Lawrence Erlbaum Associates. Patterson, C. J. (1994). Children of the lesbian baby boom: Behavioral adjustment, self-concepts, and sex-role identity. In B. Greene & G. Herek (Eds.), Contemporary Perspectives on Lesbian and Gay Psychology: Theory, Research and Application (pp. . Beverly Hills, CA: Sage. Patterson, C. J. (1992). Children of lesbian and gay parents. Child Development, 63, 1025 - 1042. Patterson, C. J. (1994). Lesbian and gay couples considering parenthood: An agenda for research, service, and advocacy. Journal of Lesbian and Gay Social Services, 1, 33 - 55. Reprinted in: L. A. Kurdek (Ed.) (1994), Social Services for Gay and Lesbian Couples (pp. 33 - 55). New York: Haworth Press, Inc. DeRosier, M. E., Kupersmidt, J. B. & Patterson, C. J. (1994). Children's academic and behavioral adjustment as a function of the chronicity and proximity of peer rejection. Child Development, 65, 1799 - 1813. Patterson, C. J. (Ed.) (1995). Developmental Psychology, 31, Number 1: special issue on "Sexual Orientation and Human Development". Patterson, C. J. (1995). Sexual orientation and human development: An overview. Developmental Psychology, 31, 3 - 11. Patterson, C. J. (1995). Families of the lesbian baby boom: Parents' division of labor and children's adjustment. Developmental Psychology, 31, 115 - 123. D'Augelli, A. R. & Patterson, C. J. (1995). Preface. Lesbian, Gay and Bisexual Identities Over the Lifespan: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J. (1995). Lesbian mothers, gay fathers, and their children. In A. R. D'Augelli & C. J. Patterson (Eds.), Lesbian, Gay and Bisexual Identities Over The Lifespan: Psychological Perspectives (pp. 262 - 290). New York: Oxford University Press. Kupersmidt, J. B., Griesler, P. C., DeRosier, M. E., Patterson, C. J. & Davis, P. W. (1995). Childhood aggression and peer relations in the context of family and neighborhood factors. Child Development, 66, 360 - 375. Patterson, C. J. (1995). Adoption of minor children by lesbian and gay adults: A social science perspective. Duke Journal of Gender Law and Policy, 2, 191 - 205. Kupersmidt, J. B., DeRosier, M. E. & Patterson, C. J. (1995). Similarity as the basis for children's friendships: The roles of sociometric status, aggressive and withdrawn behavior, academic achievement, and demographic characteristics. Journal of Social and Personal Relationships, 12, 439 - 452.
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Bolger, K. E., Patterson, C. J., Thompson, W. & Kupersmidt, J. B. (1995). Psychosocial adjustment among children experiencing persistent and intermittent family economic hardship. Child Development, 66, 1107 - 1129. Patterson, C. J. (1995). Lesbian and gay parenthood. In M. H. Bornstein (Ed.), Handbook of Parenting, Vol. 3: Status and Social Conditions of Parenting (pp. 255 - 274). Hillsdale, N. J.: Lawrence Erlbaum Associates. Kupersmidt, J. B., Burchinal, M., & Patterson, C. J. (1995). Developmental patterns of childhood peer relations as predictors of externalizing behavior problems. Development and Psychopathology, 7, 825 - 843. Patterson, C. J. (1995). Summary of research findings. In Lesbian and Gay Parenting: A Resource for Psychologists (pp. 1 - 12). Washington, D.C.: American Psychological Association. [Available as WWW Document: www.apa.org/pi/parent.html] Reprinted in: A. Sullivan (Ed.) (1997). Same-sex marriage: Pro and con --- A reader. New York: Vintage Books. Reprinted in: Association des Parents et futurs parents Gays et Lesbiens (Eds.) (1997). Petit Guide [Bibliographique] a LUsage des Familles Homoparentales et de Autres. Paris: APGL. Excerpted as: What research shows about gay and lesbian parents and their children, Family Advocate, 20, 27 - 28 (1997). Patterson, C. J. (1996). Lesbian and gay parents and their children. In R. C. Savin-Williams & K. M. Cohen, Eds., The Lives of Lesbians, Gays, and Bisexuals: Children to Adults (pp. 274 - 304). New York: Harcourt Brace. Patterson, C. J., & Chan, R. W. (1996). Gay fathers and their children. In R. P. Cabaj & T. S. Stein (Eds.), Textbook of Homosexuality and Mental Health (pp. 371 - 393). Washington, D. C.: American Psychiatric Press, Inc. Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and Gays in Couples and Families: A Handbook for Therapists (pp. 420 - 437). San Francisco: Jossey-Bass. Pungello, E. P., Kupersmidt, J. B., Burchinal, M. R., & Patterson, C. J. (1996). Environmental risk factors and children's achievement from middle childhood to early adolescence. Developmental Psychology, 32, 755 - 767. Patterson, C. J. (1996). Review of Family Outing: A Guide for Parents of Gays, Lesbians, and Bisexuals, edited by Joy Dickens. Lesbian Review of Books, 3, no. 1, 11 - 12. Patterson, C. J. (1996). Contributions of lesbian and gay parents and their children to the prevention of heterosexism. In E. D. Rothblum & L. A. Bond (Eds.), Preventing Heterosexism and Homophobia (pp. 184-201). Thousand Oaks, CA: Sage Publications.
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Patterson, C. J., & Redding, R. (1996). Lesbian and gay families with children: Public policy implications of social science research. Journal of Social Issues, 52, 29 - 50. Patterson, C. J., and Chan, R. W. (1997). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (3rd Edition) (pp. 245 - 260). New York: Wiley. Patterson, C. J. (1997). Children of lesbian and gay parents. In T. Ollendick & R. Prinz (Eds.), Advances in Clinical Child Psychology, Volume 19 (pp. 235 - 282). New York: Plenum Press. Reprinted in: L. D. Garnets & D. C. Kimmel (Eds.) (2003), Psychological perspectives on lesbian, gay, and bisexual experiences, 2nd Edition (pp. 497 - 548). New York: Columbia University Press. Patterson, C. J., Hurt, S., & Mason, C. D. (1998). Families of the lesbian baby boom: Children's contacts with grandparents and other adults. American Journal of Orthopsychiatry, 68, 390 - 399. Chan, R. W., Raboy, B., & Patterson, C. J. (1998). Psychosocial adjustment among children conceived via donor insemination by lesbian and heterosexual mothers. Child Development, 69, 443 - 457. Patterson, C. J., & DAugelli, A. R. (1998). Preface. In C. J. Patterson & A. R. DAugelli (Eds.), Lesbian, Gay and Bisexual Identities in Families: Psychological Perspectives. New York: Oxford University Press. Patterson, C. J. (1998). Family lives of children with lesbian mothers. In C. J. Patterson & A. R. D'Augelli (Eds.), Lesbian, Gay and Bisexual Identities in Families: Psychological Perspectives (pp. 154 - 176). New York: Oxford University Press. Chan, R. W., Brooks, R. C., Raboy, B., & Patterson, C. J. (1998). Division of labor among lesbian and heterosexual parents: Associations with children's adjustment. Journal of Family Psychology, 12, 402 - 419. Patterson, C. J., and Chan, R. W. (1998). Families headed by lesbian and gay parents. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development (2nd Edition). Hillsdale, N. J.: Erlbaum Associates. Bolger, K. E., Patterson, C. J., and Kupersmidt, J. B. (1998). Peer relations and self-esteem among children who have been maltreated. Child Development, 69, 1171 - 1197. Patterson, C. J. (1998). Family lives of lesbians and gay men. In A. Bellack & M. Hersen (Eds.), Comprehensive clinical psychology, Volume 9: Applications in diverse populations, N. N. Singh (Volume Ed.) (pp. 253 273). Oxford, England: Elsevier. Patterson, C. J. (1999). Children of lesbian mothers. In B. Zimmerman (Ed.), Encyclopedia of Homosexuality (2nd Edition), Volume 1: Lesbian Histories and Cultures. New York: Garland Publishing. Leff, S. S., Kupersmidt, J. B., Patterson, C. J. & Power, T. J. (1999). Factors influencing teacher identification of peer bullies and victims. School Psychology Review, 28, 505 - 517.
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Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of Marriage and the Family, 62, 1052 - 1069. Patterson, C. J., and Friel, L. V. (2000). Sexual orientation and fertility. In G. Bentley & N. Mascie-Taylor (Eds.), Infertility in the modern world: Biosocial perspectives (pp. 238 - 260). Cambridge: Cambridge University Press. Khatri, P., Kupersmidt, J. B., & Patterson, C. J. (2000). Aggression and peer victimization as predictors of selfreported behavioral and emotional adjustment. Aggressive Behavior, 26, 345 - 358. Patterson, C. J. (2001). Families of the lesbian baby boom: Maternal mental health and child adjustment. Journal of Gay and Lesbian Psychotherapy, 4, 91 - 107. Reprinted in: Glazer, D. F. & Drescher, J. (Eds.) (2001). Gay and Lesbian Parenting. New York: Haworth Press. Bolger, K. E., & Patterson, C. J. (2001). Developmental pathways from child maltreatment to peer rejection. Child Development, 72, 549 - 568. Bolger, K. E., & Patterson, C. J. (2001). Childrens internalizing problems and perceptions of control as functions of multiple types of maltreatment. Development and Psychopathology, 13, 913 - 940. Patterson, C. J. (2001). Nontraditional families and child development. In N. J. Smelser & P. B. Baltes (Eds.), International Encyclopedia of the Social and Behavioral Sciences. N. Eisenberg (Section Editor), Section on Developmental, Social, and Motivational Psychology. London: Elsevier Science. Patterson, C. J. (2002). Lesbian and gay parenthood. In M. H. Bornstein (Ed.), Handbook of Parenting, 2nd Edition (pp. 317 - 338). Hillsdale, N. J.: Lawrence Erlbaum Associates. Fulcher, M., Chan, R. W., Raboy, B., & Patterson, C. J. (2002). Contact with grandparents among children conceived via donor insemination by lesbian and heterosexual mothers. Parenting: Science and Practice, 2, 61 - 76. Patterson, C. J. (2002). Same-sex marriage and the interests of children: Comments on Michael Walds Same-sex couple marriage: A family policy perspective. Virginia Journal of Social Policy and the Law, 9, 345 - 351. Patterson, C. J., Fulcher, M., & Wainright, J. (2002). Children of lesbian and gay parents: Research, law, and policy. In B. L. Bottoms, M. B. Kovera, and B. D. McAuliff (Eds.), Children, Social Science and the Law (pp, 176 - 199). New York: Cambridge University Press. Brodzinsky, D. M., Patterson, C. J., & Vaziri, M. (2002). Adoption agency perspectives on lesbian and gay prospective parents: A national study. Adoption Quarterly, 5, 5 - 23. Bolger, K. E., & Patterson, C. J. (2003). Sequelae of child maltreatment: Vulnerability and resilience. In S. S. Luthar (Ed.), Resilience and Vulnerability: Adaptation in the Context of Childhood Adversities (pp. 156 - 181). New York: Cambridge University Press.
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Patterson, C. J., & Sutfin, E. L. (2004). Sexual orientation and parenting. In M. Hoghughi & N. Long (Eds.), Handbook of Parenting: Theory and Research for Practice (pp. 130- 145). London: Sage Publications. Patterson, C. J. (2004). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (4th Edition) (pp. 397 - 416). New York: Wiley. Patterson, C. J. (2004). What difference does a civil union make? Changing public policies and the experiences of same-sex couples: Commentary on Solomon, Rothblum and Balsam (2004). Journal of Family Psychology, 18, 287 - 289. Patterson, C. J., Sutfin, E. L., and Fulcher, M. (2004). Division of labor among lesbian and heterosexual parenting couples: Correlates of specialized versus shared patterns. Journal of Adult Development, 11, 179 - 189. Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment and school outcomes of adolescents with same-sex parents. Child Development, 75, 1886 - 1898. Fulcher, M., Sutfin, E. L., Chan, R. W., Scheib, J. E., and Patterson, C.. J. (2005). Lesbian mothers and their children: Findings from the Contemporary Families Study. In A. Omoto & H. Kurtzman (Eds.), Recent Research on Sexual Orientation, Mental Health, and Substance Abuse (pp. 281 - 299). Washington, DC: American Psychological Association. Patterson, C. J. (2005). Lesbian and Gay Parents and Their Children: Summary of Research Findings. In Lesbian and Gay Parenting: A Resource for Psychologists (2nd Edition). Washington, D.C.: American Psychological Association. Available in .html or in .pdf form online at: http://www.apa.org/pi/lgbc/publications/lgparenthome.html. Reprinted in: S. Gilreath (Ed.) (2007). Sexual Identity and the Law in Context: Cases and Materials. West Publishing. Reprinted in C. G. Joslin & S. P. Minter (Eds.) (2008). Lesbian, gay, bisexual, and transgender family law. Thomson/West Publishing. Patterson, C. J., and Hastings, P. (2006). Socialization in context of family diversity. In J. Grusec & P. D. Hastings (Eds.), Handbook of Socialization (pp. 328 - 352). New York: Guilford Press. Wainright, J. L., & Patterson, C. J. (2006). Delinquency, victimization, and substance use among adolescents with female same-sex parents. Journal of Family Psychology, 20, 526 - 530. Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in Psychological Science, 15, 241 - 244. Reprinted in: E. N. Junn & C. J. Boyatzis (Eds.) (2008), Annual Editions: Child Growth and Development 08/09 (15th Edition). New York: McGraw-Hill.
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Reprinted in: L. S. Liben (Ed.) (2009), Current Directions in Developmental Psychology (2nd Edition). Boston: Pearson Education, Inc. Reprinted in: B. Hutchinson (Ed.) (2009). Annual Editions: Human Sexualities 09/10. New York: McGraw-Hill. Reprinted in: K. R. Gilbert (Ed.) (2009). Annual Editions: The Family 10/11. New York: McGraw-Hill. Reprinted in: B. Hutchison (Ed.) (2009). Annual Editions: Gender 10/11. New York: McGraw-Hill. Reprinted in: B. Hutchison (Ed.) (2010). Annual Editions: Human Sexualities 10/11. New York: McGraw-Hill. Patterson, C. J. (2007). Lesbian and gay family issues in the context of changing legal and social policy environments. In K. J. Bieschke, R. M. Perez & K. A. DeBord & (Eds.), Handbook of Counseling and Psychotherapy with Lesbian, Gay, Bisexual and Transgender Clients (2nd Edition). Washington, D.C.: American Psychological Association. Tasker, F., and Patterson, C. J. (2007). Research on gay and lesbian parenting: Retrospect and prospect. Journal of Gay, Lesbian, Bisexual and Transgender Family Studies, 3, 9 - 34. Patterson, C. J. (2008). Sexual Orientation Across the Lifespan: Introduction to the Special Section. Developmental Psychology, 44, 1 - 4. Wainright, J. L., & Patterson, C. J. (2008). Peer relations among adolescents with female same-sex parents. Developmental Psychology, 44, 117 - 126. Sutfin, E. L., Fulcher, M., Bowles, R. P., & Patterson, C. J. (2008). How lesbian and heterosexual parents convey attitudes about gender to their children: The role of gendered environments. Sex Roles, 58, 501 - 513. Fulcher, M., Sutfin, E. L., & Patterson, C. J. (2008). Individual differences in gender development: Associations with parental sexual orientation, attitudes, and division of labor. Sex Roles, 58, 330 - 341. Telingator, C., & Patterson, C. J. (2008). Children and adolescents of lesbian and gay parents. Journal of the American Academy of Child and Adolescent Psychiatry, 47, 1364 - 1368. Patterson, C. J. (2009). Lesbian and gay parents and their children: A social science perspective. In D. A. Hope (Ed.), Contemporary Perspectives on Lesbian, Gay and Bisexual Identities: The Nebraska Symposium on Motivation, Volume 54 (pages 141-182). New York: Springer. Patterson, C. J. (2009). Lesbian and gay parents. In Shweder, R. A., Bidell, T. R., Dailey, A. C., Dixon, S.D., Miller, P. J., & Modell, J. (Eds.), The child: An encyclopedic companion. Chicago: University of Chicago Press.
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Patterson, C. J. (2009). Parental sexual orientation, social science research, and child custody decisions. In R. M. Galatzer-Levy, L. Kraus & J. Galatzer-Levy (Eds.), The scientific basis of child custody decisions (2nd Ed.). Hoboken NJ: Wiley. Farr, R. H., & Patterson, C. J. (2009). Transracial adoption by lesbian, gay, and heterosexual couples: Who completes transracial adoptions, and with what results? Adoption Quarterly, 12, 187 - 204. Patterson, C. J. (2009). Children of lesbian and gay parents: Psychology, law, and policy. American Psychologist, 64, 727 - 736. Reprinted in: Bryfonski, D. (Ed.), Opposing viewpoints: Child custody. Dallas TX: Cengage Learning. Reprinted in: Psychology of Sexual Orientation and Gender Diversity (2013), 1, 27 34. Riskind, R., & Patterson, C. J. (2010). Parenting intentions and desires among childless lesbian, gay, and heterosexual individuals. Journal of Family Psychology, 24, 78 - 81. Patterson, C. J. (2010). Why we need LGBTQ psychology. In D. Riggs, L. Short, V. Clarke, & S. Ellis (Eds.), LGBTQ Psychologies: Themes and perspectives. Cambridge, England (U.K.): Cambridge University Press. Farr, R. H., Forssell, S. L., & Patterson, C. J. (2010). Lesbian, gay, and heterosexual adoptive parents: Couple and relationship issues. Journal of GLBT Family Studies, 6, 199 - 213. Farr, R. H., Forssell, S. L., & Patterson, C. J. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 - 178. Patterson, C. J., & Riskind, R. G. (2010). To be a parent: Issues in family formation among gay and lesbian adults. Journal of GLBT Family Studies, 6, 326 - 340. Patterson, C. J., & Tornello, S. L. (2010). Gay fathers pathways to parenthood: International perspectives. Zeitschrift fur Familienforschung (Journal of Family Psychology), Sonderheft, S. 103 11 Patterson, C. J., & Riskind, R. G. (2011). Adolescents with lesbian or gay parents. In M. Fisher, E. Alderman, R. Kreipe, & W. Rosenfeld (Eds.), Textbook of adolescent health care. Chicago: American Academy of Pediatrics. Patterson, C. J., & Farr, R. H. (2011). Coparenting among lesbian and gay couples. In J. McHale & K. Lindahl (Eds.), Coparenting: A Conceptual and Clinical Examination of Family Systems. Washington, DC: American Psychological Association. Patterson, C. J., & Wainright, J. L. (2011). Adolescents with same-sex parents: Findings from the National Longitudinal Study of Adolescent Health. In D. Brodzinsky & A. Pertman (Eds.), Adoption by Lesbians and Gay Men: A new dimension in family diversity. New York: Oxford University Press. Tornello, S. L., Farr, R. H., & Patterson, C. J. (2011). Predictors of parenting stress among gay fathers. Journal of Family Psychology, 25, 591 600.
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Lick, D. J., Schmidt, K. M., & Patterson, C. J. (2011). The Rainbow Families Scale (RFS): A measure of experiences among individuals with lesbian and gay parents. Journal of Applied Measurement, 12 (3), 222 - 241. Tornello, S. L., & Patterson, C. J. (2012). Gay fathers in mixed-orientation relationships: Experiences of those who stay in their marriages and those who leave. Journal of GLBT Family Studies, 8, 85 98. Lick, D. J., Tornello, S. L., Riskind, R. G., Schmidt. K. M., & Patterson, C. J. (2012). Social climate for sexual minorities predicts well-being among heterosexual offspring of lesbian and gay parents. Sexuality research and social policy, 9, 99 112. Patterson, C. J. (2013). Family lives of lesbian and gay adults. In G. W. Peterson and K. R. Bush (Eds.), Handbook of Marriage and the Family. New York: Springer Publishing Company. Patterson, C. J. (2013). Sexual orientation and family lives. In C. J. Patterson & A. R. DAugelli (Eds.), Handbook of psychology and sexual orientation. New York: Oxford University Press. Farr, R. H., & Patterson, C. J. (2013). Lesbian and gay adoptive parents and their children. In A. E. Goldberg & K. R. Allen (Eds.), LGBT-Parent Families: Innovations in Research and Implications for Practice. New York: Springer. Lick, D.J., Patterson, C. J., & Schmidt, K. M. (2013). Recalled social experiences and current psychological adjustment among adults reared by lesbian and gay parents. Journal of GLBT Family Studies, 9, 230 253. Patterson, C. J. (2013). Schooling, sexual orientation, law and policy: Making schools safe for all students. Theory into practice, 52, 190 - 195. Farr, R. H., & Patterson, C. J. (2013). Coparenting among lesbian, gay, and heterosexual couples: Associations with adopted childrens outcomes. Child Development, 84, 1226 1240. Riskind, R. G., Patterson, C. J., & Nosek, B. (2013). Childless lesbian and gay adults self-efficacy about achieving parenthood. Couple and Family Psychology, Patterson, C. J., Riskind, R. G., & Tornello, S. L. (2013). Sexual orientation and parenting: A global perspective. For A. Abela & J. Walker, Eds., Contemporary Issues in Family Studies: Global Perspectives on Partnerships, Parenting, and Support in a Changing World. New York: Wiley/Blackwell. Patterson, C. J. (2014). Sexual minority youth and youth with sexual minority parents. In G. Melton, A. Ben-Arieh, J. Cashmore, G. Goodman, and N. Worley (Eds.), SAGE Handbook of Child Research. Sage Publications. Patterson, C. J., & Farr, R. H. (in press). Children of lesbian and gay parents: Reflections on the researchpolicy interface. In H. R. Schaffer & K. Durkin (Eds.), Blackwell handbook of developmental psychology in action. London: Blackwell.
Riskind, R. G., Tornello, S. L., & Patterson (in press). Sexual orientation and sexual and reproductive health among adolescent young women in the United States. Journal of Adolescent Health.

Invited Lectures (selected, since 1994) 1994 Invited Lecture, Lesbian and gay families with children: A social science perspective, at Duke University conference on Defining Family: Adoption Law and Policy, Durham NC. Invited Lecture, Children of lesbian and gay parents: Social science perspectives, at the annual meetings of the National Association of Women Judges, Scottsdale AZ. Invited Address, Lesbian and gay families with children: Research and policy issues, at the annual meetings of the Southeastern Psychological Association, Savannah GA. Invited Lecture, The family lives of children with lesbian and gay parents, at the Pennsylvania Conference on Lesbian, Gay and Bisexual Identities in the Family, University Park PA. Invited Lecture, Contributions of lesbian and gay parents and their children to the prevention of heterosexism, at the Vermont Conference on the Primary Prevention of Psychopathology, Burlington VT. Keynote Address, Lesbian and gay families with children: Research and policy issues, at Across the Curriculum: Contemporary Issues in Lesbian, Gay and Biesexual Studies, Mary Washington College, Fredericksburg VA. Invited Lecture, Lesbian and Gay Families with Children: Research and Policy Issues, Lesbian, Gay and Bisexual Studies Program, Yale University, New Haven CT. Invited Address, Lesbian and gay families with children: Research, law and policy, at the annual meetings of the American Psychological Association, Toronto (Canada). Invited Lecture, Social and personality development of children with lesbian mothers: A research colloquium, Lesbian, Bisexual and Gay Studies Program, Cornell University, Ithaca NY. Public Lecture, Lesbian and Gay Families with Children: Research, Law and Policy, Lesbian, Bisexual and Gay Studies Program, Cornell University, Ithaca NY. Invited Lecture, Lesbian and Gay Families with Children: Research, Law and Policy, Department of Psychology, Tulane University, New Orleans LA. M. L. Clark Multicultural Lecture, Lesbian and Gay Families with Children: Research, Law and Policy, Virginia Commonwealth University, Richmond VA. Invited Lecture, Gay/lesbian parents, at Children, Divorce and Custody: Lawyers and Psychologists Working Together, a conference co-sponsored by the American Bar Association Section on Family Law and the American Psychological Association, Los Angeles CA. Invited Lecture, Family context and child development: Insights from research on lesbian parenting, Institute for Behavioral Research, University of Georgia, Athens GA. Andrea Carson Coley Memorial Lecture, Lesbian and Gay Families with Children: Research, Law and Policy, Womens Studies Program, University of Georgia, Athens GA.
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1997 Invited Lecture, Who is a Childs Parent?, at Relatively Speaking: A Conference on Lesbian, Gay, Bisexual, and Transgender Families, New York University, New York NY. Invited Address, Lesbian Mothers, Gay Fathers, and Their Children, National Council on Family Relations, Crystal City VA. Invited Lecture, Lesbian Mothers, Gay Fathers, and Their Children: Issues in Research and Policy, Dartmouth College Womens Center, Hanover NH. Invited Lecture, Growing Up in a Non-Traditional Family: Children of Lesbian and Gay Parents, for the Chancellors Committee on the Status of Lesbian, Gay, Bisexual, and Transgender Issues, University of Illinois at Chicago Circle, Chicago IL. Colloquium, Children of lesbian and gay parents, Department of Psychology, University of Illinois at Chicago Circle, Chicago IL. Keynote Address, Lesbian and gay parents and their children, at Lesbian and Gay Parents and Their Children A Closer Look: A Symposium on Social Science Research, Public Policy, and Real Life, cosponsored by the Institute of Human Development, Boalt Hall School of Law, and by the Campus Advisory Committee on Lesbian, Gay, Bisexual, and Transgender Concerns at the University of California at Berkeley, Berkeley CA. Invited Workshop, Gay Men and Lesbians as Parents: Research Results and Legal Implications, Georgia Psychological Association, Atlanta GA. Keynote Address, Lesbian and gay parents and their children, for Protecting Our Families: Challenges and Strategies for Gay Men and Lesbians as Partners and as Parents, Stanford University Law School, Stanford CA. Invited Lecture, Lesbian and Gay Parents and Their Children, at New Approaches to Research on Sexual Orientation, Mental Health, and Substance Abuse, a workshop sponsored by the National Institutes of Health and by the American Psychological Association, Bethesda MD. Invited Public Lecture, Children of Lesbian and Gay Parent: Recent Research, sponsored by the Womens Center and by the Lesbian, Gay, Bisexual and Transgender Union, University of Virginia, Charlottesville VA. Invited Workshop, Family Issues: Domestic Partnerships, Adoption, Custody, Discrimination, Conference on Empowering Voices for Equal Rights (EVER Conference), sponsored by Soulforce and many other religious and community organizations, St. Pauls Memorial Episcopal Church, Charlottesville VA. Keynote Address, Children of Lesbian Mothers, for Lesbians/Bisexual Women Creating Families: Past, Present, and Future, Research Community Forum, Fenway Community Health Center, Boston MA. American Psychological Foundation - Roy Scrivner Memorial Lecture, Lesbian and Gay Parents and Their Children: Recent Research, at the annual meetings of the American Psychological Association, Washington DC. Invited commentary, Same-Sex Marriage, at the Fourth Annual Conference of the Center for Children, Families, and the Law, Arranging Marriage: A Place for Policy?, University of Virginia,
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Charlottesville VA. 2001 Keynote Address, Lesbian mothers, gay fathers, and their children: Issues in research and policy, at Colloquium entitled Parentalite gaie et lesbienne: Famille en marge?, Association de canadienne pour la sante mentale-filiale de Montreal, Montreal (Canada). Invited Colloquium, Growing up in a non-traditional family: Children of lesbian and gay parents, University of Richmond, Department of Psychology, Richmond VA. Invited Commentary, Child Custody Issues for Lesbian and Gay Parents, at the Fifth Annual Conference of the Center for Children, Families, and the Law, Resolving Child Custody Disputes: Innovation and Controversy, University of Virginia, Charlottesville VA. Invited Keynote Presentation, Children of Lesbian Mothers A Research Perspective, presented at the National Lesbian Healthcare Conference: Healing Works, Washington DC. Invited Workshop, Research Update on Children of Lesbian Mothers, presented at the National Lesbian Healthcare Conference: Healing Works, Washington DC. Sixth Annual Patten Lecture, Children of lesbian and gay parents: A social science view, presented at the Ackerman Institute for Family Therapy, New York NY. Invited Speaker, Psychosocial perspectives on gay- and lesbian-parented children. Presented at the Seventh Annual Conference on Race, Class, Gender, and Ethnicity, Adoption in the 21st Century: Redefining the Nuclear Family. University of North Carolina Law School, Chapel Hill NC. Invited Speaker, Sequelae of child maltreatment: Developmental pathways into and out of risk. Presented at the U. S. Childrens Bureau Adoption Opportunities / Child Abuse Prevention and Treatment Act Grantee Meeting, St. Louis MO. Invited Workshop, Lesbian and gay identities in families. Conference on Empowering Voices for Equal Rights (EVER Conference), sponsored by Soulforce and other religious and community organizations, St. Pauls Memorial Episcopal Church, Charlottesville VA. Keynote Address, Children of Lesbian and Gay Parents - A Social Science Perspective. A Matter of Pride: Creating and Sustaining LGBT Affirming Services. Columbus Health Department, Columbus OH. Invited Colloquium, Department of Psychology, Lesbian and gay parents and their children, St. Marys College, St. Marys MD. Invited Speaker, The liberty of all: Same-sex couples and the future of marriage, Plenary Panel on Gay and Lesbian Relationships, Marriages and Families. National Council on Family Relations, Vancouver BC (Canada). Invited Participant, Roundtable on Reproductive Technologies, Families, and the Law. Cardozo School of Law, Yeshiva University, New York NY. Invited Speaker, Sequelae of child maltreatment: Developmental pathways into and out of risk. Presented at the U. S. Childrens Bureau Adoption Opportunities / Child Abuse Prevention and Treatment Act Grantee Meeting, Washington, DC.
2001
2002
2002
2002
2002
2003
2003
2003
2003
2003
2003
2004
2004

2004 Invited Speaker, Gay and Lesbian Parenting: Legal and Psychological Implications in Custody Cases. American Bar Association / American Psychological Association, 11th National Conference on Children and the Law. Washington, DC. Keynote Speaker, Children of Lesbian and Gay Parents, In the Best Interest of the Child: SameGender and De Facto Parenting, Annual Conference of the Massachusetts Association of Guardians Ad Litem, Weston MA. Invited Speaker, Sexual Orientation and Human Development - Bringing the New Scholarship into the Classroom, at the First Biennial Society for Research in Child Development (SRCD) Developmental Science Teaching Institute, Atlanta GA. Invited Symposium Organizer and Speaker, Adjustment among adolescents living with same-sex couples: Findings from a national sample in the United States (with Jennifer Wainright), in C. J. Patterson (Chair), Lesbian Mothers and their Children: New Data From Three Countries. Invited Symposium presented at the Biennial Meetings of the Society for Research in Child Development (SRCD), Atlanta GA. Invited Colloquium, Families of the rainbow: Offspring of lesbian and gay parents, Developmental Science Colloquium Series, Virginia Polytechnic Institute and State University (Virginia Tech), Blacksburg VA.. Invited Lecture, Families of the rainbow: Lesbian and gay parents and their children, presented at the 54th Annual Nebraska Symposium on Motivation, Lincoln NE. Invited Presentation, Adolescents with same-sex parents: Data from the National Longitudinal Study of Adolescent Health, Presented at Family Pride Academic Symposium, University of Pennsylvania, Philadelphia PA.
2004
2005
2005
2006
2006
2006
2006 APA Division 44 Presidential Address, Our families: Building a psychology of lesbian and gay family life, presented at the annual meetings of the American Psychological Association, New Orleans LA. 2006 Invited Lecture, Living under the rainbow: Lesbian mothers and their children, presented at the Centre for Research on Human Development, Concordia University, Montreal (Canada). Invited Lecture, Children of lesbian and gay parents: A social science perspective, presented as part of the Curry Risk and Prevention Speaker Series, Curry School of Education, University of Virginia, Charlottesville VA. Invited Lecture, Sharing our stories: Tales that bring child development research to life, presented at the 2nd Biennial Society for Research in Child Development (SRCD) Developmental Science Teaching Institute, Boston MA. Invited Lecture, Lesbian and gay parents and their children: A social science perspective, presented at the Department of Human Development, State University of New York at Binghamton, Binghamton NY. Invited lecture, Our families: Building a psychology of lesbian and gay family life. Presented at the Bouverie Centre for Family Therapy, La Trobe University, Melbourne, Victoria (Australia). Invited talk, Social science perspectives on lesbian and gay parented families. Presented at the Victoria Institute for Law Reform, Melbourne, Victoria (Australia).
2007
2007
2007
2007
2007

2007 Keynote address, Living under the rainbow: Children of lesbian and gay parents today. Presented at The Rainbow Families Council Interdisciplinary Symposium, Legitimizing lesbian and gay parented families, University of Melbourne Law School, Melbourne, Victoria (Australia).
2007 Invited lecture, Fifteen years of research on sexual orientation, human development, and family life: Personal reflections. Australian Psychological Society, Women in Psychology section, Melbourne, Victoria (Australia). 2007 Invited colloquium, Living under the rainbow: Children of lesbian and gay parents today. Presented at the Department of Psychology, Victoria University, Melbourne, Victoria (Australia). 2007 Invited seminar, Sexual orientation and family lives: A social science perspective. Presented at the Michael J. Osborne Centre, Institute for Advanced Study, La Trobe University, Melbourne, Victoria (Australia). 2007 Invited colloquium, Sexual orientation and family lives: Psychological perspectives. Presented at the Department of Psychology and the Interdisciplinary Relationship Science Program, UCLA, Los Angeles CA. 2007 Invited presentation, Research on sexual orientation and parenting. Presented at the conference entitled, EVER Onward...A million voices strong, Thomas Jefferson Memorial Unitarian Universalist Church, Charlottesville VA. 2008 Invited presentation, Sexual orientation in the family, Presented at the Harvard Medical School Cambridge Hospital Alliance, Continuing Medical Education course entitled Treating Contemporary Families, Boston MA. 2008 Invited colloquium, Sexual orientation and family lives: Psychological perspectives, Presented to the Applied Developmental Psychology Program, George Mason University, Fairfax VA. 2008 Invited session, with Hon. Patricia Logue, Sexual orientation and custody, for Reconceptualizing Child Custody: Past, Present, and Future - Lawyers and Psychologists Working Together, Conference of the American Psychological Association / American Bar Association (Family Law Section), Chicago IL. Invited Colloquium, Sexual orientation and family lives: Psychological perspectives, presented at the International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited Workshop, Sexual Minority Parents and Their Children: Research, Law and Policy, presented at the International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited presentation, Psychological research perspectives on same-sex unions, presented at a symposium sponsored by the Committee on Legal Issues (COLI) on Same Sex Unions - Scientific and Legal Perspectives, at the annual meetings of the American Psychological Association, Boston MA. Invited presentation, Sexual orientation and family lives: Psychological perspectives, presented at the Department of Psychology and LGBT Public Policy Working Group, Hunter College, City University of New York, New York NY. Keynote address, Living under the rainbow: New research on queer family lives, presented at Queer Families, Healthy Families, a conference about LGBT parenting, San Francisco LGBT Community Center, San Francisco CA.
2008
2008
2008
2008
2008

2008 Invited Presentation, Living under the rainbow: New research on queer family lives, presented at the Williams Institute, UCLA Law School, Los Angeles CA. Invited Presentation, Williams Institute Roundtable, Lesbian and gay parent families and the law, University of California Building, Washington DC. Invited Colloquium, Living under the rainbow: A social science perspective on gay and lesbian family lives, presented for the Department of Psychology, School of Education, College of Human Ecology, and LGBT Resource Center at Syracuse University, Syracuse NY. Invited Presentation, Living under the rainbow: New research on lesbian and gay parents and their children, presented at the Pride and Joy Families Conference, Utica NY. Invited Address, Children of lesbian and gay parents: Psychology, law, and policy, presented at the annual meetings of the American Psychological Association, Toronto (Canada). Invited Colloquium, Living under the rainbow: New research on lesbian and gay family lives, presented at the Department of Psychology, University of Nebraska, Lincoln NE. Invited Colloquium, Living under the rainbow: New research on lesbian and gay family lives, presented at the Department of Psychology, Rutgers University - Newark, Newark NJ. Invited Colloquium, Living under the rainbow: New research on lesbian and gay family lives, presented at the Department of Psychology, University of South Florida, St. Petersburg FL. Invited Colloquium, Living under the rainbow: New research on lesbian and gay family lives, presented at the Department of Psychology, University of South Florida, Tampa FL. Invited Colloquium, "Living under the rainbow: New research on lesbian and gay family lives", presented at the Department of Psychology, University of Pittsburgh, Pittsburgh PA. Keynote Address, "Sexual orientation and reproductive health", presented at the Faculty Meeting of the Center for Population Research in LGBT Health, Fenway Institute, Boston MA. Invited Lecture, "Sexual orientation and reproductive health", presented at the 2nd International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited Workshop, "Sexual orientation, parenting, and the law: Who counts as a parent?", presented at the 2nd International LGBT Psychology Summer Institute, University of Michigan, Ann Arbor MI. Invited Address, "Sexual orientation, marriage, and parenting", presented for the Presidential Program, Marriage Equality for Same-Sex Couples: Science and the Legal Debate, Carol D. Goodheart & Bonnie R. Strickland, Co-Chairs, at the annual meetings of the American Psychological Association, San Diego CA. Invited Plenary Address, "Legal recognition of same-sex couple relationships: A changing landscape", presented at the annual meetings of the American Association of Marriage and Family Therapists, Atlanta GA. Invited Lecture, "Lesbian and gay marriage and parenting: Social science research and policy", presented at "Legal Issues for LGBT People and Their Families", forum presented by Equality Virginia, at the University of Richmond, Richmond VA.
2009
2009
2009
2009
2009
2009
2009
2009
2010
2010
2010
2010
2010
2010
2010

2010 Invited talk, "Lesbian and gay adoption: Looking ahead", presented at the Hunter College Center for LGBT Social Science and Public Policy, New York NY. Invited talk, Sexual orientation and adoptive parenthood: What have we learned?, presented at the Williams Institute 10th Anniversary Celebration and Update Conference, UCLA School of Law, Los Angeles, CA. Invited address, Sexual orientation and adoptive parenthood: A research update. Presented as the Kimberly Clermont Memorial Lecture, Gay and Lesbian Medical Association (GLMA), Atlanta GA. Invited address, Sexual orientation and adoptive parenthood: A research update. Families are Plural, International Lesbian and Gay Association of Portugal, Lisbon (Portugal). Invited talk, LGBT parents and their children: Current projects and thoughts. Presented at the Williams Institute Parenting Roundtable, Washington DC. Invited address, Adoptive parents and their children: Does sexual orientation matter? Presented at The Second European Conference on LGBT Families, Barcelona (Spain). Invited talk, Gay and lesbian parenting A radical undertaking?. Presented for Grand Rounds, HIV Center for Clinical and Behavioral Studies, Department of Psychiatry, Columbia University and New York State Psychiatric Institute, New York NY. Invited presentation, Families with lesbian and gay parents, Presented at the 22nd Annual Conference on Practical Pediatrics for the Primary Care Physician, sponsored by the Childrens Hospitals and Clinics of Minnesota, St. Paul MN. Invited presentation, Gay and lesbian parenting today: Regular or revolutionary? Conference on Lesbian and Gay Parents and Their Children, Tel Aviv University, Tel Aviv (Israel). Invited colloquium, Gay and lesbian parenting today: Regular or revolutionary? Department of Human Development and Family Studies, Penn State University, University Park PA. Panelist, LGBT Parents and Children, Austin Summit on LGBT Families, University of Texas at Austin, Austin TX. Invited talk, Growing up with lesbian and gay parents: Recent research, at All Families Matter, conference held at the University of Zurich, Zurich (Switzerland).
2011
2011
2011
2011
2012
2012
2012
2013
2013
2013
2013
Exhibit B
BIBLIOGRAPHY
Factors predicting childrens adjustment (general sources) Bornstein, M., & Lamb, M.E. (Eds.) (2011). Developmental science (6th ed.). New York: Taylor and Francis. Damon, W., & Lerner, R. (Eds.) ( 2006). Handbook of child psychology, Volume 3: Social, emotional, and personality development. Hoboken NJ: Wiley. Golombok, S. (2000). Parenting and child development in non-traditional families. Hove UK: Psychology Press. Grusec, J. & Hastings, P. (Eds.) (2006). Handbook of Socialization. New York: Guilford Press. Lamb, M. E. (Ed.) ( 1999). Parenting and child development in non-traditional families. Hillsdale NJ: Erlbaum. Lamb, M. E., (2010). The role of the father in child development (5th Ed.). Hoboken NJ: Wiley. Lamb, M. E. (2012). Mothers, fathers, families and circumstances: Factors affecting childrens adjustment. Applied Developmental Science, 16, 98 - 111. Lerner, R. M., Lamb, M. E., & Freund, A. (Eds.) (2010). Handbook of lifespan development. Volume 2: Social and emotional development. Hoboken NJ: Wiley. Patterson, C. J. (2008). Child development. Boston: McGraw Hill.
Sexual orientation of parents does not predict their childrens or adolescents adjustment Averett, P., Nalvany, B. & Ryan, S. (2009). An evaluation of gay/lesbian and heterosexual adoption. Adoption Quarterly, 12, 129 - 151. Bos, H. (2004). Parenting in planned lesbian families. Amsterdam: Vossiuspers UvA. Bos, H., van Balen, F., & van den Boom, D. (2007). Child adjustment and parenting in planned lesbian -parent families. American Journal of Orthopsychiatry, 77, 38 - 48. Brewaeys, A., Ponjaert, I., Van Hall, E., & Golombok, S. (1997). Donor insemination: Child development and family functioining in lesbian mother families. Human Reproduction, 12, 1349 - 1359.
Brewaeys, A., & Van Hall, E. (1997). Lesbian motherhood: The impact on child development and family functioning. Journal of Psychosomatic Obstetrics and Gynecology, 18, 1 - 16. Chan, R., Raboy, B., & Patterson, C. (1998). Psychosocial development among children conceived via donor insemination by lesbian and heterosexual mothers. Child Development, 69, 443 - 457. Chan, R., Brooks, R., Raboy, B., & Patterson, C. (1998). Division of labor among lesbian and heterosexual parents: Associations wiht childrens adjustment. Journal of Family Psychology, 12, 402 - 419. Erich, S., Kanenberg, H., Case, K., Allen, T. & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398 - 404. Farr, R., Forssell, S., & Patterson, C. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 178. Farr, R., & Patterson, C. (2013). Coparenting among lesbian, gay, and heterosexual couples: Associations with adopted childrens outcomes. Child Development, 84, 1226 1240. Gartrell, N., & Bos, H. (2010). U. S. National Longitudinal Lesbian Family Study: Psychological adjustment of 17 year old adolescents. Pediatrics, 126, 28 - 36. Golombok, S., & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150 - 157. Golombok, S., Perry, B., Burston, A., Murray, C., Mooney-Somers, J., Stevens, M., & Golding, J. (2003). Children with lesbian parents: A community study. Developmental Psychology, 39, 20 - 33. Golombok, S., Spencer, A., & Rutter, M. (1983). Children in lesbian and single parent households: Psychosexual and psychiatric appraisal. Journal of Child Psychology & Psychiatry, 24, 551 - 572. Golombok, S., & Tasker, F. (1996). Do parents influence the sexual orientation of their children? Findings from a longitudinal study of lesbian families. Developmental Psychology, 32, 3 - 11. Golombok, S., & Tasker, F. (2010). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (5th Ed.). Hoboken NJ: Wiley.
Golombok, S., Tasker, F., & Murray, C. (1997). Children raised in fatherless families from infancy: Family relationships and the socioemotional development of children of lesbian and single heterosexual mothers. Journal of Child Psychology and Psychiatry, 38, 783 - 792. Lamb, M. E. (2012). Mothers, fathers, families and circumstances: Factors affecting childrens adjustment. Applied Developmental Science, 16, 98 - 111. MacCallum, F., & Golombok, S. (2004). Children raised in fatherless families from infancy: A follow-up of children of lesbian and single heterosexual mothers at early adolescence. Journal of Child Psychology and Psychiatry, 45, 1407 - 1419. Patterson, C. J. (1995). Sexual orientation and human development: An overview. Developmental Psychology, 31, 3 - 11. Patterson, C. J. (1995). Families of the lesbian baby boom: Parents' division of labor and children's adjustment. Developmental Psychology, 31, 115 - 123. Patterson, C. J. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and Gays in Couples and Families: A Handbook for Therapists (pp. 420 - 437). San Francisco: Jossey-Bass. Patterson, C. J. (1997). Children of lesbian and gay parents. In T. Ollendick & R. Prinz (Eds.), Advances in Clinical Child Psychology, Volume 19 (pp. 235 - 282). New York: Plenum Press. Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of Marriage and the Family, 62, 1052 - 1069. Patterson, C. J. (2001). Families of the lesbian baby boom: Maternal mental health and child adjustment. Journal of Gay and Lesbian Psychotherapy, 4, 91 - 107. Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in Psychological Science, 15, 241 - 244. Patterson, C. J., and Chan, R. W. (1998). Families headed by lesbian and gay parents. In M. E. Lamb (Ed.), Nontraditional families: Parenting and child development (2nd Edition). Hillsdale, N. J.: Erlbaum Associates. Patterson, C. J., Fulcher, M., & Wainright, J. (2002). Children of lesbian and gay parents: Research, law, and policy. In B. L. Bottoms, M. B. Kovera, and B. D. McAuliff (Eds.), Children, Social Science and the Law (pp, 176 - 199). New York: Cambridge University Press. Patterson, C. J., Hurt, S., & Mason, C. D. (1998). Families of the lesbian baby boom: Children's contacts with grandparents and other adults. American Journal of Orthopsychiatry, 68, 390 399.
Patterson, C. J., & Redding, R. (1996). Lesbian and gay families with children: Public policy implications of social science research. Journal of Social Issues, 52, 29 - 50. Patterson, C. J., & Wainright, J. L. (2011). Adolescents with same-sex parents: Findings from the National Longitudinal Study of Adolescent Health. In D. Brodzinsky & A. Pertman (Eds.), Adoption by Lesbians and Gay Men: A new dimension in family diversity. New York: Oxford University Press. Rosenfeld, M. (2010). Nontraditional fmailies and childhood progress through school. Demography, 47, 755 - 775. Tan, T., & Baggerly, J. (2009). Behavioral adjustment of adopted Chinese girls in singlemother, lesbian couple, and heterosexual couple households. Adoption Quarterly, 12, 171 - 186. Tasker, F. (2005). Lesbian mothers, gay fathers, and their children: A review. Developmental and Behavioral Pediatrics, 26, 224 - 240. Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family. New York: Guilford Press. Vanfraussen, K., Ponjaert-Kristoffersen, I, & Brewaeys, A. (2002). What does it mean for youngsters to grow up in a lesbian family created by means of donor insemination. Journal of Reproductive and Infant Psychology, 20, 237 - 252. Vanfraussen, K., Kristoffersen, I., & Brewaeys, A. (2003). Family functioning in lesbian families created by donor insemination. American Journal of Orthopsychiatry, 73, 78 - 90. Wainright, J. L., & Patterson, C. J. (2006). Delinquency, victimization, and substance use among adolescents with female same-sex parents. Journal of Family Psychology, 20, 526 - 530. Wainright, J. L., & Patterson, C. J. (2008). Peer relations among adolescents with female samesex parents. Developmental Psychology, 44, 117 - 126. Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment and school outcomes of adolescents with same-sex parents. Child Development, 75, 1886 - 1898.
Same sex couples can provide stable family environments in which children can thrive Erich, S., Kanenberg, H., Case, K., Allen, T. & Bogdanos, T. (2009). An empirical analysis of factors affecting adolescent attachment in adoptive families with homosexual and straight parents. Children and Youth Services Review, 31, 398 - 404. Farr, R., Forssell, S., & Patterson, C. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 178.
Fingerhut, A., & Peplau, L. A. (2013). Same-sex romantic relationships. In C. Patterson & A. DAugelli (Eds.), Handbook of Psychology and Sexual Orientation. New York: Oxford University Press. Kurdek, L. (2003). Differences between gay and lesbian cohabiting couples. Journal of Social and Personal Relationships, 20, 411 - 436. Kurdek, L. (2004). Are gay and lesbian cohabiting families really different from heterosexual married couples? Journal of Marriage and Family, 66, 880 - 900. Kurdek, L. (2006). What do we know about gay and lesbian couples? Current Directions in Psychological Science, 14, 251 - 254. Kurdek, L. (2006). Differences between partners from heterosexual, gay and lesbian couples. Journal of Marriage and Family, 68, 1 - 20. Kurdek, L. (2006). The nature and correlates of deterrents to leaving a relationship. Personal Relationships, 13, 521 - 535. Kurdek, L. (2007). The allocation of household labor by partners in gay and lesbian couples. Journal of Family Issues, 28, 132 - 148. Kurdek, L. (2008). Change in relationship quality for partners from lesbian, gay male, and heterosexual couples. Journal of Family Psychology, 22, 701 - 711. Kurdek, L.(2009). Assessing the health of a dyadic relationship in heterosexual and same-sex partners. Personal Relationships, 16, 117 - 127. Patterson, C. (1996). Lesbian mothers and their children: Findings from the Bay Area Families Study. In J. Laird & R. J. Green (Eds.), Lesbians and gays in couples and families: A handbook for therapists. San Francisco: Jossey-Bass.
Children reared by same-sex parents are not more likely to have same-sex orientations themselves Bailey, J. M., Bobrow, D., Wolfe, M., & Mikach, S. (1995). Sexual orientation of adult sons of gay fathers. Developmental Psychology, 31, 124 - 129. Golombok, S., & Badger, S. (2010). Children raised in mother-headed families from infancy: A follow-up of children of lesbian and single heterosexual mothers in early adulthood. Human Reproduction, 25, 150 - 157. Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family: Effects on child development. New York: Guilford Press.
Wainright, J. L., Russell, S. T., & Patterson, C. J. (2004). Psychosocial adjustment and school outcomes of adolescents with same-sex parents. Child Development, 75, 1886 - 1898.
Parents not biologically related to their children can provide good parenting Farr, R., Forssell, S., & Patterson, C. (2010). Parenting and child development in adoptive families: Does parental sexual orientation matter? Applied Developmental Science, 14, 164 178. Farr, R., & Patterson, C. (2013). Coparenting among lesbian, gay, and heterosexual couples: Associations with adopted childrens outcomes. Child Development, 84, 1226 1240. Golombok, S., Cook, R., Bish, A., Murray, C. (1995). Families created by the new reproductive technologies: Quality of parenting and social and emotional development of the child. Child Development, 66, 285 - 298. Golombok, S., Jadva, V. Lycett, E., Murray, C., & MacCallum, F. (2005). Families created by gamete donation: Follow-up at age 2. Human Reproduction, 20, 286 - 293. Golombok, S., Lycett, E., MacCallum, F., Jadva, V., Murray, C., Rust, J., Abdalla, H., Jenkins, J., and Margara, R. (2004). Parenting infants conceived by gamete donation. Journal of Family Psychology, 18, 443 - 452. Golombok, S., MacCallum, F., Goodman, E., & Rutter, M. (2002). Families with children conceived by donor insemination: A follow-up at age twelve. Child Development, 73, 952 - 968. Golombok, S., Murray, C., Brinsden, P., & Abdalla, H. (1999). Social versus biological parenting: Family functioning and the socioemotional development of children conceived by egg or sperm donation. Journal of Child Psychology and Psychiatry, 40, 519 - 527. Golombok, S., Murray, C., Jadva, V., Lycett, E., MacCallum, F., & Rust, J. (2006). Non-genetic and non-gestational parenthood: Consequences for parent-child relationships and the psychological well-being of mothers, fathers, and children at age 3. Human Reproduction, 21, 1918 - 1924. Jadva, V., Freeman, T., Kramer, W., & Golombok, S. (2009). The experiences of adolescents and adults conceived by sperm donation: Comparisons by age of disclosure and family type. Human Reproduction, 24, 1909 - 1919. Juffer, F., & van Ijzendoorn, M. (2007). Adoptees do not lack self-esteem: A meta-analysis of studies of self-esteem of transracial, international, and domestic adoptees. Psychological Bulletin, 133, 1067 - 1083. Lansford, J., Ceballo, R., Abbey, A., & Stewart, A. (2001). Does family structure matter? A comparison of adoptive, two-parent biological, single mother, stepfather, and stepmother households. Journal of Marriage and the Family, 63, 840 - 851.
MacCallum, F., & Keeley, S. (2007). Embryo donation families: A follow-up in middle childhood. Journal of Family Psychology, 22, 799 - 808. Palacios, J., & Brodzinsky, D. (2010). Adoption research: Trends, topics, and outcomes. International Journal of Behavioural Development, 34, 270 - 284. Stams, G., Juffer, F., & van Ijzendoorn, M. (2002). Maternal sensitivity, infant attachment, and temperament in early childhood predict adjustment in middle childhood: The case of adopted children and their biologically unrelated parents. Developmental Psychology, 38, 806 - 821. Van Ijzendoorn, M., & Juffer, F. (2006). Adoption as intervention: Meta-analytic evidence for massive catch-up and plasticity in physical, socio-emotional, and cognitive development. Journal of Child Psychology and Psychiatry, 47, 1228 - 1245. Van Ijzendoorn, M., Juffer, F., & Klein Poelhuis, C. (2005). Adoption and cognitive development: A meta-analytic comparison of adopted and non-adopted childrens IQ and school performance. Psychological Bulletin, 131, 301 - 306.
Demographic information about same-sex couples and parents in Utah, and likely benefits for children in these families if their parents could obtain legal recognized marriages Badgett, M. (2011). Social inclusion and the value of marriage equality in Massachusetts and the Netherlands. Journal of Social Issues, 67, 316 334. Gates, G. (2009). Same-sex spouses and unmarried partners in the American Community Survey, 2008. Williams Institute, UCLA School of Law. Gates, G. (2013). LGBT parenting in the United States. Williams Institute, UCLA School of Law. Gonzales, G., & Blewett, L. (2013). Disparities in health insurance among children with samesex parents. Pediatrics, 132, pp. Herman, J., Mallory, C., Badgett, M., & Gates, G. (2010). Census snapshot: Utah. Williams Institute, UCLA School of Law. Riggle, E., Rostosky, S., & Horne, S. (2010). Psychological distress, well-being, and legal recognition in same-sex couple relationships. Journal of Family Psychology, 24, 82 86. Wight, R., LeBlanc, A., & Badgett, L. (2013). Same-sex legal marriage and psychological wellbeing: Findings from the California Health Interview Survey. American Journal of Public Health, 103, 339 346.
Other Sources Allen, D. W. (2013). High school graduation rates among children of same-sex households. Review Econ. Household. Published online 26 September 2013, DOI:10.1007/s11150-013-9220-y. Regnerus, M. (2012). How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study. Social Science Research, 41, 752 770.
Exhibit 5
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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Email: jdavidson@lambdalegal.org tborelli@lambdalegal.org prenn@lambdalegal.org sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 Email: cchristofferson@omm.com dsestito@omm.com mcristol@omm.com razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Email: kdove@swlaw.com mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK and MARY BARANOVICH; ANTIOCO CARRILLO and THEODORE SMALL; KAREN GOODY and KAREN VIBE; FLETCHER WHITWELL and GREG FLAMER; MIKYLA MILLER and KATRINA MILLER; ADELE TERRANOVA and TARA NEWBERRY; CAREN
No. 2:12-CV-00578-RCJ-PAL
DECLARATION OF LETITIA ANNE PEPLAU, PH.D. IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
Appendix Page 121
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CAFFERATA-JENKINS and FARRELL CAFFERATA-JENKINS; and MEGAN LANZ and SARA GEIGER, Plaintiffs, v. BRIAN SANDOVAL, in his official capacity as Governor of the State of Nevada; DIANA ALBA, in her official capacity as Clerk for Clark County; AMY HARVEY, in her official capacity as Clerk for Washoe County; and ALAN GLOVER, in his official capacity as Clerk-Recorder for Carson City, Defendants
I, Letitia Anne Peplau, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT 1. My professional background, experience, and publications are detailed in my
curriculum vitae, which is attached as Exhibit A to this declaration. I have been retained by counsel for Plaintiffs as an expert in connection with the above-captioned litigation. I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2. I was a Professor of Psychology at the University of California, Los Angeles
beginning in 1973, with promotions to tenure in 1978, to full professor in 1982, and to Distinguished Professor in 2010. From 2005-2011, I served as Director of the UCLA Interdisciplinary Relationship Science Program. This program, funded by the National Science Foundation, trained doctoral students in the study of families and other personal relationships. I formally retired from UCLA in June 2011, but am continuing to work at UCLA as Distinguished Research Professor and as the Psychology Department Vice Chair for Graduate Studies. 3. In broad terms, my research addresses topics concerning personal relationships,
gender, and sexual orientation. I have conducted research on heterosexual couples, co-authored a book entitled Close Relationships, and published articles comparing empirical findings about
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mens and womens experiences in close relationships. In the 1970s, I was one of the first researchers to conduct empirical investigations of the intimate relationships of lesbians and gay men, and I have continued this program of research for the past 30 years. In addition, I have written several major reviews of the scientific research on same-sex relationships, including a 2007 article in the Annual Review of Psychology and a 2009 article in the Encyclopedia of Human Relationships. I have also conducted empirical studies on gay and lesbian identity. 4. I received my B.A. in Honors Psychology from Brown University in 1968 and my
Ph.D. in Social Psychology from Harvard University in 1973. As reflected in my curriculum vitae (Exhibit A), I have published more than 120 papers in scholarly journals and scholarly books, primarily in the field of couple relationships. I have co-authored or co-edited over 10 books, and I have frequently presented my research at universities and scientific meetings. 5. My expertise extends beyond the specific areas addressed in my own empirical
research program to include other theory and empirical research related to sexual orientation and same-sex relationships. A broad knowledge of this area has been necessary not only for my own scholarship, but also for successfully completing my professional duties as a teacher, as Director of the UCLA Interdisciplinary Relationship Science Program, and as a reviewer of academic journals and book manuscripts. 6. As a result of my research and other accomplishments, I have received several
professional awards. I have been elected a fellow of the American Psychological Association and of the Association for Psychological Science. I have received lifetime achievement awards from the American Psychological Association, the International Association for Relationship Research, and the Society for the Scientific Study of Sexuality. I also had the honor of being elected president of the International Society for the Study of Personal Relationships (an organization since renamed the International Association for Relationship Research). 7. In preparing this Declaration, I reviewed the Complaint in this case, and the
materials listed in the attached Bibliography (Exhibit B). I may rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this Affidavit, as additional support for my opinions. I have also relied on my years of experience in
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this field, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein. 8. In the past four years, I have testified as an expert either at trial or through
declaration or been deposed as an expert in In the Matter of the Adoption of X.X.G. and N.R.G. in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, Case No. 06-43881 FC 04, Cole v. The Arkansas Department of Human Services in the Circuit Court of Pulaski County, Arkansas, Case No. CV2008-14284, Perry v. Schwarzenegger, Case No. 09-CV2292 VRW (N.D. Cal.), Golinski v. Office of Personnel Management, 3:10-cv-0257-JSW (N.D. Cal.), Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), Dragovich v. U.S. Dept of the Treasury, CV 4:10-01564-CW (N.D. Cal.), and Donaldson and Guggenheim v. Montana in the Montana First Judicial District Court, Lewis and Clark County, Case No. BDV-2010-702. 9. For my work in this matter, I am being compensated at my standard consulting rate
of $300 per hour for preparation time, time spent writing my report, and time spent giving deposition and trial testimony. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. I. Summary of Opinions 10. Sexual orientation refers to an enduring pattern of emotional, romantic, and/or
sexual attractions to men, women, or both sexes. Most adults are attracted to and form relationships with members of only one sex. Efforts to change a persons sexual orientation through religious or psychotherapy interventions have not been shown to be effective. 11. It is well-established that homosexuality is a normal expression of human
sexuality. It is not a mental illness, and being gay or lesbian has no inherent association with a persons ability to lead a happy, healthy, and productive life or to contribute to society. 12. Research shows that same-sex couples closely resemble heterosexual couples.
Like their heterosexual counterparts, many lesbian, gay, and bisexual individuals form loving, long-lasting relationships with a partner. 13. Marriage provides a range of social and other benefits and protections to spouses.
These contribute to enhanced psychological well-being, physical health, and longevity among
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married individuals. Domestic partnerships are not as well-understood or respected by the community as marriage, which has significant cultural values and expectations. Same-sex couples are therefore harmed by being excluded from marriage. 14. In the United States, lesbian, gay, and bisexual individuals experience pervasive
social stigma and the added stress that results from prejudice and discrimination. Stigma is reflected both in acts of individuals and in the institutions of society, including its laws, that legitimate and perpetuate the second-class status of gay men, lesbians, and bisexuals. Nevadas exclusion of same-sex couples from marriage both reflects and perpetuates stigma against lesbians, gay men, and same-sex couples. The stigma and discrimination perpetuated by Nevadas exclusion harm not only same-sex couples, but gay men, lesbians, and bisexuals as a group. 15. There is no scientific support for the notion that allowing same-sex couples to
marry would harm different-sex relationships or marriages. The factors that affect the quality, stability, and longevity of different-sex relationships would not be affected by marriages between same-sex couples. II. Understanding Sexual Orientation A. 16. What is Sexual Orientation? The American Psychological Association provides a widely accepted definition of
sexual orientation: Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes. Sexual orientation also refers to a persons sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions.1 17. Beginning with the research of Alfred Kinsey in the 1940s, researchers have
recognized that sexual orientation can range along a continuum from exclusively heterosexual to exclusively homosexual. Nonetheless, it is most often discussed in terms of three categories: heterosexual (having emotional, romantic, or sexual attractions to members of the other sex), gay/lesbian (having attractions to members of ones own sex), and bisexual (having attractions to
1
American Psychological Association, 2008; Herek, 2000.

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both men and women). Most adults in the United States can readily categorize themselves as heterosexual, gay/lesbian, or bisexual.2 The specific category name that an individual prefers (e.g., homosexual, gay) may vary3, but in national surveys in the U.S., nearly all participants are able to indicate their sexual orientation category. 18. For clarity, it is important to distinguish sexual orientation from other aspects of
sex and gender. These include biological sex (the anatomical, physiological, and genetic characteristics associated with being male or female), gender identity (an individuals psychological sense of being male or female), and gender-role orientation (the extent to which an individual conforms to cultural norms defining feminine and masculine behavior). 19. Social scientists view sexual orientation as a multi-faceted phenomenon involving
attractions, related behaviors, and identity. In research studies, the particular component of sexual orientation that researchers assess will differ depending on the purpose of the research. For example, a study about the experiences of individuals in same-sex marriages would recruit participants based on their behavior of marrying a person of the same sex. A study of personal experiences of social stigma and discrimination among openly gay and lesbian individuals would most likely recruit individuals who self-identify as gay or lesbian. 20. Sexual orientation is inherently linked to social relationships. Sexual orientation is
a characteristic of an individual, like their biological sex, age, or race, and it is also about relationships whether an individual is attracted sexually or romantically to partners of the same sex or the opposite sex.4 Just as heterosexual individuals often express their sexual orientation
through relationships including marriage with a different-sex partner, so gay and lesbian individuals express their sexual orientation through relationships including marriage with a samesex partner. Further, sexual orientation is not merely about sexual behavior but also about building enduring intimate relationships. In other words, sexual orientation is centrally linked to the most important personal relationships that adults form with other adults in order to meet their basic human needs for love, attachment, and intimacy. These relationships, whether with a sameSee, e.g., Chandra, Mosher, Copen & Sionean, 2011, pp 29-30; Laumann, Gagnon, Michael & Michaels, 1994, p. 293. 3 See, e.g., Herek, Norton, Allen & Sims, 2010. 4 Peplau & Cochran, 1990; Peplau & Fingerhut, 2007.
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sex or different-sex partner, are an essential part of an individuals personal identity. B. 21. Can Sexual Orientation Be Changed? Currently, the precise factors that cause an individual to be heterosexual,
homosexual, or bisexual are still being researched. Much research has examined possible genetic, prenatal hormonal, developmental, and social influences on sexual orientation, and many scientists view sexual orientation as resulting from the interplay of those factors.5 22. A consistent finding across many studies, beginning with the work of Alfred
Kinsey in the 1940s and 1950s and continuing through current research, is that most adults report having sexual attractions to and experiences with members of only one sex.6 As adults, the majority of these individuals have had exclusively heterosexual experiences and attraction, and a minority have had exclusively same-sex experiences and attraction. A small percentage of adults report sexual attractions and experiences with both sexes.7 23. The significant majority of adults exhibit a consistent and enduring sexual
orientation.8 The fact that many lesbian and gay adults form long-term intimate relationships with a partner of the same sex,9 just as heterosexual adults do with a partner of the other sex, provides evidence of the stability of sexual orientation over time. Nonetheless, a small minority of individuals are exceptions to this majority pattern. For example, while in prison, some men who identify as heterosexual may nonetheless engage in sexual activities with men since female partners are unavailable. Some individuals have reported changes in their sexual orientation in midlife, perhaps as a result of meeting a particular person. Understanding these kinds of exceptions to the general pattern of stable sexual orientation described above is of theoretical interest to scholars. Researchers have used terms like sexual fluidity or sexual plasticity to American Psychological Association, 2008. Kinsey, Pomeroy & Martin, 1948; Kinsey, Pomeroy, Martin & Gebhard, 1953; Laumann, et al., 1994; Chandra, et al., 2011. 7 Some individuals are very clear about their sexual orientation at an early age. In contrast, because of the social prejudice and discrimination against gay men and lesbians, some adolescents and young adults go through a prolonged period of trying to understand their own sexual identity and coming to terms with being lesbian, gay, or bisexual. 8 Based on large-scale survey data, Chandra et al. (2011, p. 1) conclude that Sexual attraction and identity correlate closely but not completely with reports of sexual behavior. Thus, most heterosexual individuals do not engage in sexual activity with same-sex partners, and most gay and lesbian individuals similarly do not engage in heterosexual behavior. 9 Carpenter & Gates, 2008; see also Peplau & Fingerhut, 2007.
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refer to changes in sexual behavior, attractions, and identity over time or across situations. Importantly, observations about fluidity in a small minority of people should not obscure the big picture of stability for the majority of adults. In a discussion of womens sexual fluidity, Peplau and Garnets10 noted: Claims about the potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships. Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect, let alone that individuals outside this small minority have the power to change voluntarily their sexual orientation. This is why standard definitions of sexual orientation characterize it as stable. 24. Before the emergence of gay communities in the United States, it was fairly
common for lesbians and gay men to marry a person of the other sex.11 They entered these ostensibly heterosexual marriages for diverse reasons: to avoid social stigma, in response to pressure from family and friends, from a belief that marriage was the only way to have children, and/or to participate in a fundamental social institution. In some cases, these individuals only recognized or acknowledged their sexual orientation after marriage. It is psychologically harmful to ask lesbians and gay men to deny a core part of who they are by ignoring their attraction to same-sex partners and instead marrying a different-sex partner. Moreover, the disclosure that a spouse is gay or lesbian is often hurtful to the heterosexual spouse, highly upsetting to their children or other family members, and frequently sets the stage for separation or divorce. Therefore, encouraging gay men and lesbians to enter into a marriage with a heterosexual partner is not in the best interests of the individuals or the interests of society. 25.
10 11
When gay men and lesbians are asked by researchers about their sexual
orientation, the vast majority report that they experienced no choice or very little choice about Peplau & Garnets, 2000, p. 333. Bozett, 1982; Higgins, 2006. Researchers have estimated the percentage of lesbians and gay men who have been married. An analysis of responses to a 2003 survey of adults in California found that about 25% of lesbians and 9% of gay men ages 18-59 reported having ever been married, most of them presumably to a person of the other sex (Carpenter & Gates, 2008, Table 3).
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their sexual orientation. In a national survey conducted with a representative sample of more than 650 self-identified lesbian, gay, and bisexual adults, 95% of the gay men and 83% of the lesbians reported that they experienced no choice at all or very little choice about their sexual orientation.12 26. Sexual orientation is highly resistant to change through psychological or religious
interventions. Recently, the American Psychological Association appointed a task force to conduct a systematic review of the peer-reviewed journal literature on sexual orientation change efforts.13 The Task Force concluded that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm (p. 3). Based on currently available research, there is no credible evidence that these efforts are either effective or safe, and ample reason to believe that these interventions can harm those who participate.14 The Task Force also found evidence that many individuals who unsuccessfully attempt to change their sexual orientation experience considerable psychological distress including anxiety, depression, thoughts of suicide, and sexual dysfunction. 27. Currently, no major mental health professional organization has approved
interventions to change sexual orientation, and virtually all of them have adopted policy Herek, Norton, Allen & Sims, 2010. In that survey, 88% of gay men reported that they had no choice, and 7% reported very little choice. Similarly, 68% of lesbians responded that they had no choice at all, and 15% reported having very little choice. See also results from a California survey by Herek, Gillis & Cogan, 2009, Table 5. 13 APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington, DC: American Psychological Association. This report provides a detailed review and analysis of relevant research. Available at: http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. 14 Although some psychotherapists and religious counselors have reported changing their clients sexual orientation from homosexual to heterosexual, empirical support for these claims is lacking. After reviewing published empirical research on this topic, the APA Task Force reported that it found serious methodological problems in this area of research, such that only a few studies met the minimal standards for evaluating whether psychological treatments, such as efforts to change sexual orientation, are effective (p. 2). Based on its review of the studies that met acceptable standards, the Task Force concluded that enduring change to an individuals sexual orientation is uncommon. The participants in this body of research continued to experience same-sex attractions following SOCE [sexual orientation change efforts] and did not report significant change to other-sex attractions that could be empirically validated, though some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of decreased same-sex sexual behavior and of engagement in sexual behavior with the other sex was rare. Few studies provided strong evidence that any changes produced in laboratory conditions translated to daily life. Thus, the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE (pp. 2-3).
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statements cautioning professionals and the public about these treatments.15 These include the American Psychiatric Association, American Psychological Association, American Counseling Association, and National Association of Social Workers. Further, since adolescents may be subjected to these treatments after disclosing to their families that they are gay, lesbian, or bisexual, the American Academy of Pediatrics has adopted a policy statement advising that therapy directed specifically at attempting to change an adolescents sexual orientation should be avoided and is unlikely to result in change. The Pan American Health Organization, which is the World Health Organizations regional office for the Americas and the oldest public health organization in the world, has stated that there is no scientific evidence for the effectiveness of efforts to change sexual orientation.16 28. In summary, there is convergent scientific evidence documenting that sexual
orientation reflects an enduring set of attractions and experiences for most people. Efforts to change a persons sexual orientation through religious or psychotherapy interventions have not been shown to be effective. III. Sexual Orientation Does Not Affect a Persons Ability to Function Effectively 29. The consensus view of scientific researchers and mental health professionals is
that homosexuality is a normal expression of human sexuality. Homosexuality is not a mental illness, and being gay or lesbian has no inherent association with a persons ability to participate in or contribute to society.17 Lesbians and gay men are as capable as heterosexuals of leading a happy, healthy, and productive life. They are also as capable as heterosexuals of doing well in their jobs and of excelling in school. 30. Although homosexuality was once believed to be a mental illness, that mistaken
view was discredited by scientific research beginning in the 1970s. In 1973, the American Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of Mental Disorders, noting that homosexuality per se implies no impairment in judgment, stability, These policy statements are compiled in Just the Facts About Sexual Orientation and Youth: A Primer for Principals, Educators, and School Personnel, a publication that is available from the Just the Facts Coalition on the American Psychological Associations website: http://www.apa.org/pi/lgbt/publications/just-the-facts.pdf. 16 Pan American Health Organization, 2012. 17 Herek, 2010; Herek & Garnets, 2007.
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reliability, or general social or vocational capabilities.18 In 1975, the American Psychological Association endorsed this position and urged psychologists to help educate the public and to dispel the stigma of mental illness associated with homosexuality.19 31. Gay and lesbian individuals are subject to the same stresses of life as their
heterosexual counterparts, including the death of a close relative, loss of a job, or a serious illness. Research consistently demonstrates that high levels of stress are harmful not only to psychological well-being but also to physical health.20 In addition to the life stresses that can affect everyone, members of stigmatized minority groups, including gay men and lesbians as well as ethnic/racial minorities, may experience additional stress caused by prejudice and discrimination. This has been termed minority stress.21 This excess stress has been associated with an increased risk of psychological problems, especially those like anxiety and depression that are most closely linked to stress.22 Despite the pervasive social stigma against homosexuality and the resulting unique social stressors lesbians and gay men experience, the vast majority of lesbian and gay individuals cope successfully with these challenges and lead healthy, happy, welladjusted lives. And there is nothing about sexual orientation itself whether one is heterosexual or homosexual that makes a person more or less able to contribute to or participate in society. 32. Social relationships can play an important role in buffering individuals from the
stresses of life. Like heterosexuals, lesbians and gay men benefit from having a close intimate relationship, for example, with a spouse. Further, people benefit from the social, emotional, and material support that can be provided by family, friends, and others. Research also documents that the psychological well-being of lesbians and gay men is enhanced by having positive feelings about being gay, having developed a positive sense of gay identity, and being open about their sexual orientation with important other people, such as family members.23 American Psychiatric Association, 1974. For other resolutions by this organization, see http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx. 19 Conger, 1975. Also, the American Psychological Association has endorsed several resolutions concerning sexual orientation. These can be found at: http://www.apa.org/pi/lgbt/resources/policy/index.aspx. 20 Thoits, 2010. 21 Meyer, 2003, 2007. 22 Herek & Garnets, 2007; Pascoe & Richman, 2009. 23 Herek & Garnets, 2007; Meyer, 2003; Pachankis, 2007; Pascoe & Richman, 2009.
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IV.
Scientific Research Into Same-Sex Couples Relationships Establishes That They Closely Resemble Different-Sex Couples Relationships 33. Negative stereotypes about same-sex couples are common in America, leading
many people to believe and argue that same-sex relationships are fundamentally different from, and inferior to, heterosexual relationships. But the consensus of the scientific research is that this characterization is inaccurate. 34. Lesbians and gay men are as able to form loving, committed relationships with a
same-sex partner as are heterosexuals in committed relationships with a different-sex partner. Empirical research has repeatedly shown that gay men and lesbians have happy, satisfying relationships.24 Like their heterosexual counterparts, lesbians and gay men form deep emotional bonds and strong commitments to their partners. Research documents striking similarities between same-sex and heterosexual couples on standardized measures of love, relationship satisfaction, and relationship adjustment. The extensive body of research that examines the quality and functioning of same-sex relationships demonstrates that same-sex couples are not inherently different from heterosexual couples. To the contrary, same-sex couples closely resemble heterosexual couples and the processes that affect both types of relationships are remarkably similar.25 35. Lesbians and gay men, like heterosexuals, value committed relationships and a
majority would like to marry. In a national survey,26 74% of lesbians and gay men said that if they could legally marry someone of the same sex, they would like to do so. 36. Scientific research consistently shows that the same factors that contribute to
commitment and stability in different-sex couples apply to same-sex couples. One factor is the quality of a couple's relationship. As noted above, research shows that, on average, same-sex and different-sex relationships are equally satisfying and well-adjusted. Couples with more satisfying relationships are more likely to stay together than other couples, regardless of sexual orientation. A second factor that contributes to commitment and stability within different-sex and same-sex
24 25
Kurdek, 2004, 2005; Peplau & Fingerhut, 2007. American Psychological Association, 2004. 26 Kaiser Family Foundation, 2001.
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couples alike are barriers that make it difficult for a person to leave a relationship. Research demonstrates that, as with their heterosexual counterparts, lesbians and gay men who perceive more barriers to terminating a relationship are more likely to remain together. Third, certain demographic characteristics of different-sex couples are consistently correlated with breakup rates (e.g. their age at marriage, race, level of education, and religious affiliation). It is likely that the same demographic characteristics that predict stability and instability in different-sex couples also apply to same-sex couples. 37. In 2004, based on a review of research on marriage and same-sex relationships, the
American Psychological Association passed a Resolution on Sexual Orientation and Marriage,27 in which it concluded that many lesbians and gay men have formed durable relationships and the factors that predict relationship satisfaction, relationship commitment, and relationship stability are remarkably similar for both same-sex cohabiting couples and heterosexual married couples. V. Barring Same-Sex Couples from Marriage Causes Them Harm 38. There is widespread consensus among social science researchers that marriage
generally provides many benefits to both spouses. A large body of scientific research comparing heterosexuals who are currently married to those who are not married establishes that marriage fosters psychological well-being, physical health, and longevity.28 Of course, marriages that are unhappy, conflict-ridden, or violent do not provide the same benefits as the average marriage. 39. Studies consistently associate marriage with better health and greater longevity;
marriage also has a moderating effect on individual risk-taking behavior.29 Illustrative data come from a report by the U.S. Center for Disease Contro1.30 Using a large national database, CDC researchers found that regardless of age, sex, race, ethnicity, education, or income, married adults were on average healthier than cohabiting, divorced, widowed, or never married adults. Married American Psychological Association, 2004. E.g., Cherlin, 2009; Johnson, et al., 2000; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Nock, 1995; Proulx, et al., 2007; Schoenborn, 2004; Umberson, 1992; Waite, 1995. 29 Hu & Goldman, 1990; Johnson et al., 2000; Waite, 1995; Waldron, Hughes, & Brook, 1996. 30 Schoenborn, 2004. Marital status and health: United States, 1999-2002. Advance Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services.
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individuals reported lower rates of smoking, drinking heavily, or being physically inactive (although married men were more likely to be overweight than other men). Married adults also reported lower rates of being limited in their daily activities of living, being in poor health, or suffering from headaches or serious psychological distress. Other research using national data reliably demonstrates that, on average, married individuals live longer than unmarried individuals. 40. Marriage is also associated with enhanced psychological well-being. On average,
married individuals report less anxiety and depression and greater happiness and satisfaction with life than do unmarried individuals.31 41. There are two explanations for the clear differences observed between married and
unmarried individuals.32 One explanation is known as the selection effect: to some extent, individuals with better mental and physical health are more likely to choose to marry and/or better able to attract a partner and maintain a relationship over time. Using a variety of research methods, researchers have demonstrated that the selection effect only partially accounts for the physical and psychological differences found between married and unmarried individuals. These research methods include longitudinal studies of the effects of marriage over time, longitudinal studies of transitions into or out of marriage, and studies that statistically control for factors such as income that are known to be associated with health. For example, one longitudinal study found that individuals who married between the first and second assessment were less depressed at the time of the second assessment than those who remained unpartnered. This suggests that getting married on average led to a reduction in depression.33 42. The second explanation for the positive physical and psychological benefits of
marriage is known as the protection effect.34 There are many ways in which marriage can provide protective benefits that contribute to the health and well-being of spouses. The marriage Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Proulx, et al., 2007; Waite, 1995. Gove, Hughes, & Style, 1984; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Waldron, Hughes, & Brook, 1996. 33 Lamb, Lee, & DeMaris, 2003. 34 Cherlin, 2009; Gove, Hughes, & Style, 1984; Kim & McKenry, 2002; Lamb, Lee, & DeMaris, 2003; Waldron, Hughes, & Brook, 1996.
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relationship is a social union and a legal contract that creates a well-recognized and valued kinship relationship. Marriage binds spouses not only to each other but can also bind individuals to the broader community, which understands, appreciates, and values the significance of the marriage relationship. Marriage often provides individuals with a sense of obligation to others, which gives life meaning beyond oneself.35 For many people, marriage has great symbolic significance, establishing that the individual has a new social identity and is part of a valued and respected social institution. 43. In addition, marriage often entails a moral commitment by spouses to support each
other in sickness and in health. Spouses often help each other to adopt more healthful lifestyles, cope with the stress and uncertainty of life, and recuperate from illness and injury. 44. The security of marriage often enables spouses to adopt a long-term perspective,
putting off immediate rewards to build a future life together and encouraging mutual sacrifice. This has been referred to as enforceable trust.36 45. One way that couples express the symbolic significance of their marriage is
through a wedding ceremony. Although cultures have differing traditions and individual couples may choose to depart from certain customs and traditions, the celebration of a wedding is a ritual that is important to the couple, their respective families, and the larger community. Wedding ceremonies are typically state-sanctioned public rituals that signify not only the joining together of the spouses, but the creation of new extended families and in-laws with shared interests and mutual obligations. The formation of a marriage transforms biological strangers into kin. Wedding ceremonies usually also involve members of the broader community friends, coworkers, neighbors who come together to recognize the new status of the couple and their changed position in their community. 46. Marriage is widely regarded as one of the most important rites of passage for
adulthood, and it marks a major transition in a persons life. For many, marriage signifies entry into full adulthood, with expectations that the individual will act in more mature ways. The sense of being a responsible adult may be one reason why married individuals engage in less risky
35 36
Waite, 1995. Cherlin, 2009.

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behavior than their unmarried peers. The marriage relationship itself is associated with certain duties and responsibilities for example, that spouses should care for each other and build a life together. 47. When a couple marries, they may bring with them separate networks of family,
friends, and others who can support them in time of need. Marriage often merges these support networks, expanding the circle of valued confidants, help givers, and others who are available to the couple. Marriage typically involves spouses in new sets of social obligations: the new responsibilities of each spouse toward their in-laws are complemented by the obligations of the extended family to support the married couple. 48. Social support is central to the institution of marriage. Compared to unmarried
individuals, married adults tend to receive more social support from other people, especially from their parents, and this support contributes to individual well-being. The public aspect of marriage can increase each spouses sense of security that the relationship will be long-lasting. 49. Although these conclusions are derived from studies of heterosexual couples, it is
reasonable to infer that same-sex couples will generally benefit from marriage as do their heterosexual counterparts. This idea is supported by the many well-established similarities in the nature and quality of same-sex and heterosexual couples relationships.37 As it does for many different-sex couples, marriage for many same-sex couples would create bonds between the spouses and a social network of in-laws, friends, and others who can provide emotional support and tangible assistance. As with different-sex couples, marriage would bind same-sex couples together in a well-understood and highly valued social union and legal contract. 50. Marriage embodies many cultural values and expectations, often reflected in
marriage vows by which spouses pledge to love and care for each other, to be faithful to each other, and to stay together through good times and bad until separated by death. These cultural expectations provide a framework that individuals can draw upon to understand and build a relationship together. These cultural expectations also provide guidelines that relatives and society can draw on. In this regard, marriage is expected to have benefits for same-sex couples
37
Kurdek, 2004, 2005; Peplau & Fingerhut, 2007.

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that are not offered by domestic partnerships, which are not as well understood, appreciated, or respected by the community as marriage. 51. Recent data of same-sex spouses in Massachusetts offer important insights on the
experience of married lesbian and gay American couples.38 Most lesbians and gay men reported that marriage had improved their social relationships: 62% said their family was more accepting of their partner and 41% said their family was more accepting of their sexual orientation. In addition, 69% felt more accepted in their community. Most respondents said that their parents reacted positively to their marriage (82%) as did their siblings (91%). Lesbians and gay men were also asked about ways that marriage had improved their relationship. A majority (72%) agreed that they felt more committed to their partner. Many reported that they now worry less about legal problems (48%) and nearly a third said that one of the spouses receives health benefits from an employer as a result of marriage. Other benefits mentioned included feeling more accepted by society (38%) and feeling more financially stable (14%). One in four of the samesex couples surveyed were raising children, and 93% of these respondents agreed that their children were happier or better off as a result of their marriage; 2% disagreed, and 4% were unsure. 52. Leading organizations of mental health professionals recognize the benefits of
marriage for same-sex couples and the harm created by denying access to civil marriage to samesex couples. As one example, in 2005 the American Psychiatric Association, the leading organization representing physicians in the field of mental health, adopted a policy statement on this issue. Their resolution stated: In the interest of maintaining and promoting mental health, the American Psychiatric Association supports the legal recognition of same-sex civil marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities.39 Further, in its Resolution on Sexual Orientation and Marriage,40 the American Psychological Association resolved [t]hat APA believes that it is unfair and discriminatory to deny same-sex couples legal access to civil
38 39 40
Ramos, Goldberg & Badgett, 2009. American Psychiatric Association, 2005. American Psychological Association, 2004.
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marriage and all its attendant benefits, rights, and privileges. VI. Barring Same-Sex Couples from Marriage Reflects and Perpetuates Stigma Against Lesbians, Gay Men, and Same-Sex Couples 53. Lesbian, gay, and bisexual individuals are the targets of prejudice and
discrimination in the United States.41 National opinion surveys document that many Americans have negative attitudes toward this group of people and toward marriage for same-sex couples. Research has also documented that heterosexuals often view same-sex couples more negatively than heterosexual couples.42 Gay, lesbian, and bisexual individuals experience discrimination at work and in their communities,43 and most states provide no legal protection against discrimination based on sexual orientation. Significant numbers of gay, lesbian, and bisexual individuals are targets of harassment and violence.44 These facts demonstrate that gay, lesbian, and bisexual individuals experience pervasive social stigma. 54. Social stigma refers to severe social disapproval of a class of people perceived as
being different, deviant, or in violation of cultural norms.45 In American society today, gay men, lesbians, and bisexuals continue to be a highly stigmatized minority group. Many heterosexuals, who are the dominant group in society, perceive gay men, lesbians, bisexuals, and same-sex couples, as fundamentally different, hold negative stereotypes about their characteristics, and view discrimination against them as acceptable. Social stigma is reflected both in the acts of individuals and in the institutions of society, including its laws, that legitimate and perpetuate the second-class status of gay men, lesbians, bisexuals, and same-sex couples. 55. By prohibiting same-sex couples from marrying, Nevada law both reflects and
perpetuates stigma against lesbians, gay men, and same-sex couples. Nevada law devalues and delegitimizes the relationships of legally married same-sex couples. By giving heterosexuals exclusive access to the benefits associated with the institution of marriage, Nevada law perpetuates power differentials between heterosexual citizens and non-heterosexual citizens.
41 42 43 44 45
Herek, 2009a. Testa, Kinder & Ironson, 1987. Herek, 2009b. Herek, 2009b. Herek, 2009a.
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Nevada law signals that in the eyes of the state, the committed relationships of same-sex couples are inferior to different-sex relationships and that partners in same-sex relationships are less deserving of social recognition and government protection. The stigma perpetuated by Nevada law affects not only individuals in committed relationships with a person of the same sex, but all gay, lesbian, and bisexual individuals as a group. VII. There Is No Evidence That Heterosexual Relationships Would Be Harmed If Same-Sex Couples Were Permitted To Marry 56. For many decades, social scientists have studied and analyzed the factors that
contribute to rates of divorce.46 There is a scientific consensus about the key factors that may be responsible. First, increasing employment opportunities for women have led to a dramatic increase in the percentage of married women in the workforce. Paid employment gives wives greater economic independence from their husbands which in turn makes it more feasible to end an unhappy marriage. Second, since the 1970s, economic opportunities for men without college education have diminished, adding financial stress to the lives of some married couples. Third, there have also been important changes in public attitudes. Public acceptance of divorce has increased, as has the social acceptability of unmarried cohabitation. Some scholars also suggest that a growing emphasis on individualism and personal fulfillment has eroded an earlier emphasis on the importance of obligation and commitment in marriage. Fourth, state no-fault divorce laws have made it easier for spouses to end their relationships. 57. In addition, research has identified several demographic characteristics that are
associated with an increased likelihood of divorce.47 First, age at marriage matters: people who marry as teenagers are more likely to divorce than those who are in their 20s or older. Second, unemployment and low incomes are associated with greater rates of marital dissolution. Third, so too is race or ethnicity. African Americans have significantly higher rates of marital separation, Asian Americans have lower rates, and other groups fall in between. Fourth, individuals whose parents divorced while they were growing up are at greater risk of divorce. Although a
46 47
Cherlin, 2009; Coontz, 2007; Bramlett & Mosher, 2002; Teachman, 2002. Amato, 1996; Bramlett & Mosher, 2002; Heaton, 2002; Lehrer & Chiswick, 1993; Raley & Sweeney, 2007.
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correlation exists, there is no scientific evidence that these demographic characteristics in and of themselves cause relationships to end. When spouses are similar on such characteristics as religion and age, the risk of divorce is lower. 58. None of these factors uniquely correlates with same-sex couples or with allowing
them to marry. Allowing same-sex couples to marry would not alter state marriage laws, economic opportunities for married heterosexual women or men, public attitudes toward divorce or cohabitation, or personal values of individualism or commitment. Nor would it affect the age at which heterosexuals decide to marry, their personal history of parental divorce, their choice of a similar or dissimilar partner, or their race or ethnicity. Indeed, the fact that lesbians and gay men, a class of citizens formerly denied legal marriage, are seeking to obtain marriage rights could be seen as beneficial, because it broadens the scope of support for the value of marriage as a central social institution in American society. 59. Allowing same-sex couples to marry would not affect the quality, stability, or
longevity of different-sex relationships. The quality of a heterosexual couples marriage depends on such factors as the spouses personalities, their communication styles and ways of handling conflict with each other, the stress a couple experiences, and the social support and resources available to the couple. None of these factors is altered if a same-sex couple living down the block gets married. In addition, the stability of marriages between different-sex couples depends on barriers to divorce, including investments the spouses have made in each other and their relationship, their moral and personal convictions about marriage, the options they see available outside of marriage, and the many legal, financial, and social obligations that come with a marriage license. Finally, the longevity of a marriage is also affected by the spouses demographic characteristics their age at marriage, race, level of education, and religious affiliation. These factors are not influenced by the marital status of other couples. In short, there is no scientific basis for the proposition that allowing same-sex couples to marry would affect the underlying processes that foster stability in different-sex marriages. 60. In response to an effort to ban marriage for same-sex couples, the Executive Board
of the American Anthropological Association, the worlds largest organization of anthropologists,
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issued the following statement: The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.48 61. Further, recent data from Massachusetts, where marriage for same-sex couples
became available in May 2004, do not support the contention that the marriages of same-sex couples affects marriage for different-sex couples. An examination of statistical data from 2000 to 2010 (the most recent data available) indicates that marriage of same-sex couples has not led to a decline in marriage nor to an increase in divorce in Massachusetts.49 As shown in the table below, there are minor fluctuations in rates of marriage and divorce from year to year in Massachusetts; this is typical across all states in the U.S. Massachusetts Marriage and Divorce Rates Per 1,000 Residents by Year Before 2004 2000 Marriage 5.8 Divorce 62. 2.5 2001 6.2 2.4 2002 5.9 2.5 2003 5.6 2.5 After 2004 2004 6.5 2.2 2005 6.2 2.2 2006 5.9 2.3 2007 5.9 2.3 2008 5.7 2.0 2009 5.6 2.2 2010 5.6 2.5
In the four years prior to when same-sex couples were permitted to marry (2000-
2003), the average marriage rate was 5.9 marriages per 1,000 total population in the state. In the seven years after same-sex couples were permitted to marry (2004-2010), the average marriage rate was 5.9. Divorce rates from Massachusetts are also informative. In the four years prior to when same-sex couples were permitted to marry (2000-2003), the average divorce rate was 2.5. In the seven years after same-sex couples were permitted to marry (2004-2010), the divorce rate has been lower, averaging 2.2.
48 49
American Anthropological Association, 2004. Marriage rates by State: 1990, 1995, and 1999-2010, Division of Vital Statistics, National Center for Health Statistics, CDC. Available at: http://www.cdc.gov/nchs/data/nvss/marriage_rates_90_95_99-10.pdf. Divorce rates by State: 1990, 1995, and 1999-2010, Division of Vital Statistics, National Center for Health Statistics, CDC. Available at: http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99-10.pdf.
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Exhibit A
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August, 2012
Letitia Anne Peplau

Distinguished Research Professor Department of Psychology University of California, Los Angeles, CA 90095-1563 Telephone: (310) 825-1187 FAX: (310) 206-5895 Email: lapeplau@ucla.edu Education B.A. in Honors Psychology, Brown University, 1968 (Summa cum laude) Ph.D. in Social Psychology, Harvard University, 1973 Academic Positions at UCLA 1973-2010 2010 2011 1983-1988 1985-1986 1988-1990 1994-1995 1999-2011 2005-2011 2004-present Professor of Psychology Distinguished Professor of Psychology Distinguished Professor of Psychology, emeritus Director, Graduate Program in Social Psychology Associate Director, Center for the Study of Women Acting Co-Director, Center for the Study of Women Director, Graduate Program in Social Psychology Faculty Affiliate, UCLA Center for the Study of Women Director, NSF IGERT Interdisciplinary Relationship Science Program, UCLA Vice Chair for Graduate Studies, UCLA Psychology Department
Honors and Professional Societies Danforth Graduate Fellowship, 1968-1973 National Science Foundation Predoctoral Fellowship, 1968-1970 Phi Beta Kappa Sigma Xi American Psychological Association (elected fellow in Divisions 8, 9, 35 and 44) Association for Psychological Science (fellow) American Sociological Association Society for Experimental Social Psychology Society for the Psychological Study of Social Issues International Academy of Sex Research Society for the Scientific Study of Sexuality Outstanding Achievement Award, Committee on Lesbian and Gay Concerns, APA, 1986 President, International Society for the Study of Personal Relationships, 1994-1996 Distinguished Scientific Achievement Award, Society for the Scientific Study of Sexuality, 1997 Monette/Horwitz Trust Award for Research on Gay, Lesbian, and Bisexual Studies, 2000. Outstanding Faculty Award, UCLA Lesbian, Gay, Bisexual and Transgender Campus Center, June 2001. Distinguished Publication Award 2001, Association for Women in Psychology Distinguished Scientific Contribution Award, Division 44, APA, 2002 Invited Master Lecture at the annual meeting of the American Psychological Association, 2002.
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Elected to membership in the International Academy of Sex Research, 2003 Distinguished Teaching Award, UCLA Psychology Department, 2003 Award for Distinguished Faculty Service, Womens Studies Program, UCLA, 2005 Mentoring Award, International Association for Relationship Research, 2006 Distinguished Elder Award, APA National Multicultural Summit and Conference, 2007 Heritage Award for Research, APA Division 35 (Society for the Psychology of Women), 2007 Awarded the Evelyn Hooker Award for Distinguished Contribution by an Ally, APA Division 44 (Society for the Psychological Study of Lesbian, Gay and Bisexual Issues), 2008 Editorial Activities Member, Editorial Board, Journal of Social Issues, 1974-1977 Member, Editorial Board, Social Psychology Quarterly, 1977-1979 Consulting Editor, Psychology of Women Quarterly, 1978-1980 Member, Editorial Board, Journal of Homosexuality, 1980-1985 Member, Editorial Board, SIGNS: A Journal of Women in Culture and Society, 1981-1989 Member, Advisory Board, Journal of Personal and Social Relationships, 1985-1987 Consulting Editor, Journal of Personality and Social Psychology, 1985-1989 Member, Editorial Board, Journal of Psychology and Human Sexuality, 1987-1989 Member, Advisory Board, Advances in Personal Relationships, l986-1992 Member, Editorial Board, Journal of Social Issues, 1992-1995 Member, Advisory Board, Columbia University Press Series on Lesbian and Gay Studies, 1993-2000 Associate Editor, SIGNS: A Journal of Women in Culture and Society, 2000-2005 Member, Editorial Board, Contemporary Perspectives on Lesbian, Gay, and Bisexual Psychology, APA Books, 2001-2009 Member, Editorial Board, Sexuality Research and Social Policy: Journal of NSRC, 2003-2011 Member, International Advisory Board, Ibadan Journal of Social Sciences, 2004-2010 Selected Recent Professional Activities Member, Editorial Board, Psychology and Sexuality Member, Scientific Review Panel for the Placek Research Award Program, American Psychological Foundation, 1995-2000 Member, Committee on Women in Psychology Network (representative from Division 8), 1998-present Member, Working Group on Same-Sex Families, American Psychological Association, April 2004. Chair, Fellows Selection Committee, Society for the Psychological Study of Social Issues (Div. 9 of APA), 2004-2005. Member, Fellows Selection Committee, Society for the Psychological Study of Lesbian, Gay and Bisexual Issues (Div. 44 of APA), 2006-2008. Books and Edited Volumes Taylor, S. E., Peplau, L. A., & Sears, D. O. (2006). Social psychology, 12th Ed. Upper Saddle River, NJ: Prentice-Hall.
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Taylor, S. E., Peplau, L. A., & Sears, D. O. (2003). Social psychology, 11th Ed. Upper Saddle River, NJ: Prentice-Hall. Published into Russian in 2004. Peplau, L. A., & Garnets, L. D. (Eds.) (2000). Women's sexualities: Perspectives on sexual orientation and gender. Journal of Social Issues, 56 (whole number 2). This volume was selected for the 2001 Distinguished Publication Award of the Association for Women in Psychology. Taylor, S. E., Peplau, L. A., & Sears, D. O. (2000). Social psychology, 10th Ed. Upper Saddle River, NJ: Prentice-Hall. Peplau, L. A., DeBro, S. C., Veniegas, R. C., & Taylor, P. (Eds.) (1999). Gender, culture and ethnicity. Mountain View, CA: Mayfield Publishing. Taylor, S. E., Peplau, L. A., & Sears, D. O. (1997). Social psychology, 9th Ed. Upper Saddle R iver, NJ: Prentice-Hall. Peplau, L. A. & Taylor, S. E. (Eds.) (1997). Sociocultural perspectives in social psychology. Upper Saddle River, NJ: Prentice-Hall. Taylor, S. E., Peplau, L. A., & Sears, D. O. (1994). Social psychology, 8th Ed. Englewood Cliffs, NJ: Prentice-Hall. Rubin, Z., Peplau, L. A., & Salovey, P. (1993). Psychology, 1st Ed. Boston, MA: Houghton-Mifflin. Sears, D. O., Peplau, L. A., & Taylor, S. E. (1991). Social psychology, 7th Ed. Englewood Cliffs, NJ: Prentice-Hall. Peplau, L. A., Sears, D. O., Taylor, S. E. , & Freedman, J. L. (Eds.) (1988). Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall. Sears, D. O., Peplau, L. A., Freedman, J. L., & Taylor, S. E. (1988). Social psychology, 6th Ed. Englewood Cliffs, NJ: Prentice-Hall. Sears, D. O., Freedman, J. L., & Peplau, L. A. (1985). Social psychology, 5th Ed. Englewood Cliffs, NJ: Prentice-Hall. Peplau, L.A., & Goldston, S. E. (Eds.) (1984). Preventing the harmful consequences of severe and persistent loneliness. DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office (Monograph). Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Close relationships. New York: Freeman. Reprinted (2002) by Percheron Press. Peplau, L. A., & Jones, R. (Issue Editors) (1982). Homosexual couples. Journal of Homosexuality, 8 (whole number 2).
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Peplau, L. A., & Perlman, D. (Eds.) (1982). Loneliness: A sourcebook of current theory, research and therapy. New York: Wiley-Interscience. Published in Japanese translation in 1988 and in Russian in 1989. Peplau, L. A., & Hammen, C. L. (Eds.) (1977). Sexual behavior: Social psychological issues. Journal of Social Issues, 33, (whole number 2). Articles and Book Chapters Ghavami, N., & Peplau, L. A. (revise and resubmit). An intersectional analysis of gender and ethnic stereotypes: Testing three hypotheses. Psychology of Women Quarterly. Lavner, J., Waterman, J., & Peplau, L. A. (under review). Parent adjustment over time in gay, lesbian, and heterosexual parent families adopting from foster care. Journal of Orthopsychiatry. Lavner, J., Waterman, J., & Peplau, L. A. (accepted for publication). Can gay and lesbian parents promote healthy development in high-risk children adopted from foster care? Journal of Orthopsychiatry. Fingerhut, A.W. & Peplau, L. A. (forthcoming). Same-sex romantic relationships. In C. J. Patterson & A. R. DAugelli (Eds.), Handbook of psychology and sexual orientation. New York: Oxford University Press. Preciado, M. A. & Peplau, L. A. (2011). Self-perception of same-sex sexuality among heterosexual women: Association with personal need for structure. Self and Identity, doi:10.1080/15298868.2010.51572. Ghavami, N., Fingerhut, A. W., Peplau, L. A., Grant, S. K., & Wittig, M. A. (2011). Testing a model of minority identity achievement, identity affirmation and psychological well-being among ethnic minority and sexual minority individuals. Cultural Diversity and Ethnic Minority Psychology, 17, 79-88. Fingerhut, A. W., Peplau, L. A., & Gable, S. L. (2010). Identity, minority stress and psychological well-being among gay men and lesbians. Psychology and Sexuality, 1(2), 101-114. Beals, K. P., Peplau, L. A., & Gable, S. L. (2009). Stigma management and well-being: The role of social support, cognitive processing, and suppression. Personality and Social Psychology Bulletin, 35, 867-879. Conley, T. D., & Peplau, L. A. (2009). Gender and perceptions of romantic partners sexual risk. Journal of Sexual Medicine, 7, 794-802. Conley, T. D., Roesch, S. C., Peplau, L. A., & Gold, M. S. (2009). Testing the positive illusions model of relationship satisfaction among gay and lesbian couples. Journal of Applied Social Psychology, 39, 1417-1431. Peplau, L. A., Frederick, D. A., Yee, C., Maisel, N., Lever, J. & Ghavami, N. (2009). Body image satisfaction among heterosexual, gay and lesbian adults. Archives of Sexual Behavior, 38(5), 713725.
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Peplau, L. A., & Ghavami, N. (2009). The relationships of lesbians, gay men and bisexuals. In H. Reis & S. Sprecher (Eds.). The encyclopedia of human relationships. Thousand Oaks, CA: Sage Publications. Frederick, D., Lever, J., & Peplau, L. A. (2008). The Barbie mystique: Satisfaction with breast size and shape across the lifespan. International Journal of Sexual Health, 20, 200-211. Peplau, L. A. & Huppin, M. (2008). Masculinity, femininity and the development of sexual orientation in women. Journal of Gay and Lesbian Mental Health, 12(1/2), 147-167. Also published as a chapter in R. Mathy & J. Drescher (Ed.) Childhood gender nonconformity and the development of adult homosexuality (pp 147-167). Binghamton, NY: Haworth Press. Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of lesbians and gay men. Annual Review of Psychology, 58. 10.1-10.20. Frederick, D. A., Buchanan, G. M., Sadeghi-Azar, L., Peplau, L. A., Haselton, M. G., Berezovskaya, A., & Lipinski, R. E. (2007). Desiring the muscular ideal: Mens body satisfaction in the United States, Ukraine, and Ghana. Psychology of Men and Masculinity, 8, 103-117. Frederick, D., Lever, J., & Peplau, L. A. (2007). Interest in cosmetic surgery and body image: Views of men and women across the life span. Plastic and Reconstructive Surgery, 120, 14071415. Fingerhut, A. W., & Peplau, L. A. (2006). The impact of social roles on stereotypes of gay men. Sex Roles, 55, 273-278. Garnets, L., & Peplau, L. A. (2006). Sexuality in the lives of adult lesbian and bisexual women. In D. C. Kimmel, T. Rose, & S. David (Eds.) Research and clinical perspectives on lesbian, gay, bisexual, and transgender aging, pp. 70-90. New York: Columbia University Press. Beals, K. P., & Peplau, L. A. (2006). Disclosure patterns within the social networks of gay men and lesbians. Journal of Homosexuality, 51(2), 101-120. Lever, J., Frederick, D., & Peplau, L. A. (2006). Does size matter? Mens and womens views on penis size across the life span. Psychology of Men and Masculinity, 7(3), 129-143. Frederick, D. A., Peplau, L. A., & Lever, J. (2006). The swimsuit issue: Correlates of body image in a sample of 52, 677 heterosexual adults. Body Image: An International Journal of Research, 3, 413-419. Impett, E. A., & Peplau, L. A. (2006). His and her relationships: A review of the empirical evidence. In A. Vangelisti & D. Perlman (Eds.), The Cambridge handbook of personal relationships (pp. 884-904). New York: Cambridge University Press. Elsesser, K., & Peplau, L. A. (2006). The glass partition: Obstacles to cross-sex friendships at work. Human Relations, 59(8), 1077-1100. Impett, E. A., Gable, S., & Peplau, L. A. (2005). Giving up and giving in: The costs and benefits of daily sacrifice in intimate relationships. Journal of Personality and Social Psychology, 89, 327-344.
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Impett, E. A., Peplau, L. A., & Gable, S. (2005). Approach and avoidance sexual motives: Implications for personal and interpersonal well-being. Personal Relationships, 12, 465-482. This paper received Distinguished Publication award from the International Association for Relationships Research, July 20, 2008. Fingerhut, A. W., Peplau, L. A., & Ghavami, N. (2005). A dual-identity framework for understanding lesbian experience. Psychology of Women Quarterly, 29, 129-139. Beals, K. P., & Peplau, L. A. (2005) Identity support, identity devaluation and well-being among lesbians. Psychology of Women Quarterly, 29, 140-145. Peplau, L. A., & Fingerhut, A. (2004). The paradox of the lesbian worker. Journal of Social Issues, 60(4), 719-735. Peplau, L. A., Fingerhut, A., & Beals, K. P. (2004). Sexuality in the relationships of lesbians and gay men. In J. Harvey, A. Wenzel, & S. Sprecher (Eds.), Handbook of sexuality in close relationships (pp. 350-369). Mahwah, NJ: Erlbaum. Peplau, L. A. & Beals, K. P. (2004). The family lives of lesbians and gay men. In A. Vangelisti (Ed.), Handbook of family communication (pp. 233-248). Mahwah, NJ: Erlbaum. Peplau, L. A. (2003). Human sexuality: How do men and women differ? Current Directions in Psychological Science, 12(2), 37-40. Reprinted in J. B. Ruscher & E. Y. Hammer (Eds.) (2004). Current directions in social Psychology (pp. 76-82). Upper Saddle River, NJ: Prentice Hall. Impett, E. A., & Peplau, L. A. (2003). Sexual compliance: Gender, motivational, and relationship perspectives. Journal of Sex Research, 40, 87-100. This paper received the 2004 Student Research Award from the Society for Sex Therapy and Research. Impett, E. A., & Peplau, L. A. (2002). Why some women consent to unwanted sex with a dating partner: Insights from attachment theory. Psychology of Women Quarterly, 26, 360-370. Beals, K., Impett, E., & Peplau, L. A. (2002). Lesbians in love: Why some relationships endure and others end. Journal of Lesbian Studies, 6(1), 53-64. Garnets, L. D., & Peplau, L. A. (2002). A new paradigm for womens sexual orientation: Implications for therapy. Women and Therapy, 24, 111-122. Reprinted in E. Kaschak & L. Tiefer (Eds.) (2002). A new view of womens sexual problems (pp. 111-122.) Binghamton, NY: Haworth Press. Impett, E. A., Beals, K. P., & Peplau, L. A. (2001-02). Testing the investment model of relationship commitment and stability in a longitudinal study of married couples. Current Psychology, 20(4), 312-326. Reprinted in N. J. Pallone (Ed.) (2003), Love, romance, and sexual interaction: Research perspectives from Current Psychology (pp. 163-181). New Brunswick, NJ: Transaction Press.
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Peplau, L. A., & Beals, K. P. (2001). Lesbians, gay men and bisexuals in relationships. In J. Worell (Ed.), Encyclopedia of women and gender (pp. 657-666). San Diego, CA: Academic Press. Beals, K. P., & Peplau, L. A. (2001). Social involvement, disclosure of sexual orientation, and the quality of lesbian relationships. Psychology of Women Quarterly. 25, 10-19. Peplau, L. A. (2001). Rethinking womens sexual orientation: An interdisciplinary, relationshipfocused approach. Personal Relationships, 8, 1-19. Peplau, L. A., & Garnets, L. D. (2000). A new paradigm for understanding womens sexuality and sexual orientation. Journal of Social Issues, 56(2), 329-350. Garnets, L. D., & Peplau, L. A. (2000). Understanding womens sexualities and sexual orientations: An introduction. Journal of Social Issues, 56(2), 181-192. Peplau, L. A., & Spalding, L. R. (2000). The close relationships of lesbians, gay men and bisexuals. In C. Hendrick & S. S. Hendrick (Eds.), Close relationships: A sourcebook (pp. 111124). Thousand Oaks, CA: Sage Publications. Veniegas, R. C., Taylor, P. L., & Peplau, L. A. (1999). A guide to resources about gender, culture and ethnicity. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 1-13). Mountain View, CA: Mayfield Publishing. Peplau, L. A., Veniegas, R. C., Taylor, P. L., & DeBro, S. C. (1999). Sociocultural perspectives on the lives of women and men. In L. A. Peplau, S. C. DeBro, R. C. Veniegas, & P. Taylor (Eds.) Gender, culture and ethnicity (pp 23-37). Mountain View, CA: Mayfield Publishing. Peplau, L. A., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1999). The development of sexual orientation in women. Annual Review of Sex Research, Vol 10, 70-99. Vincent, P. C., Peplau, L. A., & Hill, C. T. (1998). A longitudinal application of the theory of reasoned action to women's career behavior. Journal of Applied Social Psychology, 28, 761-778. Hill, C. T., & Peplau, L. A. (1998). Premarital predictors of relationship outcomes: A 15-year followup of the Boston Couples Study. In T. N. Bradbury (Ed.), The developmental course of marital dysfunction (pp. 237-278). New York: Cambridge University Press. Peplau, L. A., Garnets, L.D., Spalding, L. R., Conley, T. D., & Veniegas, R. C. (1998). A critique of Bems Exotic Becomes Erotic theory of sexual orientation. Psychological Review, 105(2), 387-394. Perlman, D., & Peplau, L. A. (1998). Loneliness. In H. S. Friedman (Ed.) Encyclopedia of mental health, Vol 2 (pp. 571-581). San Diego, CA: Academic Press. Spalding, L. R., & Peplau, L. A. (1997). The unfaithful lover: Heterosexuals' stereotypes of bisexuals and their relationships. Psychology of Women Quarterly, 21, 611-625. Veniegas, R. C., & Peplau, L. A. (1997). Power and the quality of same-sex friendships. Psychology of Women Quarterly, 21(2), 279-297.
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This article was awarded the Graduate Student Research Prize by APA Division 35 and the Association for Women in Psychology in 1997. Veniegas, R. C., & Peplau, L. A. (1997). A guide to sociocultural resources in social psychology. In L. A. Peplau & S. E. Taylor (Eds.), Sociocultural perspectives in social psychology (pp. xivxx). Upper Saddle River, NJ: Prentice Hall. Peplau, L. A., Cochran, S. D., & Mays, V. M. (1997). A national survey of the intimate relationships of African-American lesbians and gay men: A look at commitment, satisfaction, sexual behavior and HIV disease. In B. Greene (Ed.) Ethnic and cultural diversity among lesbians and gay men (pp 11-38). Newbury Park: Sage Publications. Bui, K. T., Peplau, L. A., & Hill, C. T. (1996). Testing the Rusbult model of relationship commitment and stability in a 15-year study of heterosexual couples. Personality and Social Psychology Bulletin, 22, 1244-1257. Peplau, L. A., Veniegas, R. C., & Campbell, S. M. (1996). Gay and lesbian relationships. In R. C. Savin-Williams & K. M. Cohen (Eds.), The lives of lesbians, gays, and bisexuals: Children to adults (pp. 250-273). New York: Harcourt Brace. Wayment, H. A., & Peplau, L. A. (1995). Social support and well-being among lesbian and heterosexual women: A structural modeling approach. Personality and Social Psychology Bulletin, 21(11), 1189-1199. Peplau, L. A. (1994). Men and women in love. In D. L. Sollie & L. S. Leslie (Eds.), Gender, families, and close relationships: Feminist research journeys (pp. 19-49). Thousand Oaks, CA: Sage Publications. De Bro, S. C., Campbell, S. M., & Peplau, L. A. (1994). Influencing a partner to use a condom: A college student perspective. Psychology of Women Quarterly, 18, 165-182. Peplau, L. A., Hill, C. T., & Rubin, Z. (1993). Sex-role attitudes in dating and marriage: A 15year followup of the Boston Couples Study. Journal of Social Issues, 40(3), 31-52. Campbell, S. M., Peplau, L. A., & De Bro, S. C. (1992). Women, men, and condoms: Attitudes and experiences of heterosexual college students. Psychology of Women Quarterly, 16(3), 273288. Garnets, L., Hancock, K. A., Cochran, S. D., Goodchilds, J., & Peplau, L. A. (1991). Issues in psychotherapy with lesbians and gay men: A survey of psychologists. American Psychologist, 46(2), 964-972. Reprinted in D. R. Atkinson & G. Hackett (Eds.) (1998). Counseling diverse populations. New York: McGraw-Hill. Campbell, S. M., Dunkel-Schetter, C. A., & Peplau, L. A. (1991). Perceived control and adjustment to infertility among women undergoing in vitro fertilization. In A. L. Stanton & C. A. Dunkel-Schetter (Eds.), Psychological adjustment to infertility (pp. 133-156). New York: Plenum. Cochran, S. D., & Peplau, L. A. (1991). Sexual risk reduction behaviors among young heterosexual adults. Social Science and Medicine, 33(1), 25-36.
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Peplau, L. A. (1991). Lesbian and gay relationships. In J. C. Gonsiorek & J. D. Weinrich (Eds.), Homosexuality: Research findings for public policy (pp. 177-196). Newbury Park, CA: Sage Publications. Reprinted in L. D. Garnets & D. C. Kimmel (Eds.) (1993). Psychological perspectives on lesbian and gay male experiences (pp. 395-419). New York: Columbia University Press. Peplau, L. A., & Cochran, S. D. (1990). A relationship perspective on homosexuality. In D. P. McWhirter, S. A. Sanders, & J. M. Reinisch (Eds.), Homosexuality/heterosexuality: Concepts of sexual orientation (pp. 321-349). New York: Oxford University Press. Peplau, L. A., & Conrad, E. (1989). Beyond nonsexist research: The perils of feminist methods in psychology. Psychology of Women Quarterly, 13, 381-402. Peplau, L. A., & Campbell, S. M. (1989). Power in dating and marriage. In J. Freeman (Ed.), Women: A feminist perspective, 4th Ed. (pp. 121-137). Palo Alto, CA: Mayfield Publishing. Reprinted in S. J. Ferguson (Ed.), (2001). Shifting the center: Understanding contemporary families, 2nd Ed. Mountain View, CA: Mayfield, pp. 142-152. Peplau, L. A. (1988). Loneliness: New directions in research. Participate in the challenge of mental health and psychiatric nursing in 1988 (pp. 127-142). [Proceedings of the 3rd National Conference on Psychiatric Nursing, Montreal, Quebec, Canada.] Peplau, L. A. (1988). Reading research reports in social psychology. In L. A. Peplau, D. O. Sears, S. E. Taylor, & J. L. Freedman (Eds.), Readings in social psychology: Classic and contemporary contributions, 2nd Ed. (pp.1-5). Englewood Cliffs, NJ: Prentice-Hall. Peplau, L. A. (1987). Loneliness and the college student. In I. Z. Rubin & E. McNeil. The psychology of being human, 4th Ed. (pp. 475-479). New York: Harper & Row. Cochran, S. D., & Peplau, L. A. (1985). Value orientations in heterosexual relationships. Psychology of Women Quarterly, 9, 477-488. Blasband, D., & Peplau, L. A. (1985). Sexual exclusivity versus openness in gay male couples. Archives of Sexual Behavior, 14(5), 395-412. Peplau, L. A., & Gordon, S. L. (1985). Women and men in love: Gender differences in close heterosexual relationships. In V. E. O'Leary, R. K. Unger, & B. S. Wallston Eds.), Women, gender and social psychology (pp. 257-291). Hillsdale, NJ: Lawrence Erlbaum. Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 246-268). Baltimore, MD: Lanahan Publishers. Peplau, L. A. (1985). Loneliness research: Basic concepts and findings. In I. G. Sarason & B. R. Sarason (Eds.), Social support: Theory, research and application (pp. 270-286). Boston: Martinus Nijhof. Peplau, L. A. (1985). Loneliness. In A. Kuper & J. Kuper (Eds.), The social science encyclopedia (p. 474). Boston: Routledge and Kegan Paul.
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Perlman, D., & Peplau, L. A. (1984). Loneliness research: A survey of empirical findings. In L. A. Peplau & S. E. Goldston (Eds.), Preventing the harmful consequences of severe and persistent loneliness (pp. 13-46). DHHS Publication No. (ADM) 84-1312. Washington, DC: U.S. Government Printing Office. Caldwell, M. A., & Peplau, L. A. (1984). The balance of power in lesbian relationships. Sex Roles, 10, 587-600. Reprinted in W. R. Dynes & S. Donaldson (Eds.) (1992), Studies in homosexuality, Vol VII: Lesbianism (pp. 27-39). New York: Garland Publishing. Hill, C. T., Peplau, L. A., & Rubin, Z.(1983). Contraceptives use by college dating couples. Population and Environment: Behavioral and Social Issues, 6(1), 60-69. Peplau, L. A. (1983). Roles and gender. In H. H. Kelley, et al., Close relationships (pp. 220-264). New York: Freeman. Kelley, H. H., Berscheid, E., Christensen, A., Harvey, J., Huston, T., Levinger, G., McClintock, E., Peplau, L. A., & Peterson, D. (1983). Analyzing close relationships. In H. H. Kelley, et al., Close relationships (pp. 20-64). New York: Freeman. Berscheid, E., & Peplau, L. A. (1983). The emerging science of relationships. In H. H. Kelley, et al., Close relationships (pp. 1-19). New York: Freeman. Peplau, L. A., & Gordon, S. L. (1983). The intimate relationships of lesbians and gay men. In E. R. Allgeier & N. B. McCormick (Eds.), The changing boundaries: Gender roles and sexual behavior (pp. 226-244). Palo Alto, CA: Mayfield. Reprinted in J. N. Edwards & D. H. Demo (Eds.) (1991). Marriage and family in transition (pp 479-496.) Boston: Allyn and Bacon. Rook, K. S., & Peplau, L. A. (1982). Perspectives on helping the lonely. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 351-378). New York: Wiley. Perlman, D., & Peplau, L. A. (1982). Theoretical approaches to loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 123-134). New York: Wiley. Peplau, L. A., & Perlman, D. (1982). Perspectives on loneliness. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 1-18). New York: Wiley. Peplau, L. A., Padesky, C., & Hamilton, M. (1982). Satisfaction in lesbian relationships. Journal of Homosexuality, 8(2), 23-35. Peplau, L. A., Miceli, M., & Morasch, B. (1982). Loneliness and self evaluation. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 135-151). New York: Wiley. Peplau, L. A., Bikson, T. K., Rook, K. S., & Goodchilds, J. D. (1982). Being old and living alone. In L. A. Peplau & D. Perlman (Eds.), Loneliness (pp. 327-347). New York: Wiley. Peplau, L. A., & Amaro, H. (1982). Understanding lesbian relationships. In W. Paul & J. D. Weinrich (Eds.), Homosexuality: Social, psychological and biological issues (pp. 233-248). Beverly Hills, CA: Sage.
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Reprinted in T. Roberts (Ed.) (1997). The Lanahan readings in the psychology of women (pp. 269-280). Baltimore, MD: Lanahan Publishers. Peplau, L. A. (1982). Research on homosexual couples: An overview. Journal of Homosexuality, 8(2), 3-8. Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 33-40). New York: Harrington Park Press. Michela, J. L., Peplau, L. A., & Weeks, D. G. (1982). Perceived dimensions of attributions for loneliness. Journal of Personality and Social Psychology, 43(5), 929-936. Caldwell, M. A., & Peplau, L. A. (1982). Sex differences in same-sex friendship. Sex Roles, 8(7), 721-732. Berg, J., & Peplau, L. A. (1982). Loneliness: The relationship of self-disclosure and androgyny. Personality and Social Psychology Bulletin, 8(4), 624-630. Rubin, Z., Peplau, L. A., & Hill, C. T. (1981). Loving and leaving: Sex differences in romantic attachments. Sex Roles, 7(8), 821-835. Risman, B. J., Hill, C. T., Rubin, Z., & Peplau, L. A. (1981). Living together in college: Implications for courtship. Journal of Marriage and the Family, 43, 77-83. Perlman, D., & Peplau, L. A. (1981). Toward a social psychology of loneliness. In S. Duck & R. Gilmour (Eds.), Personal relationships in disorder (pp. 31-56). London: Academic Press. Reprinted in B. Earn & S. Towson (Eds.) (1986). Readings in social psychology (pp. l37l55). Peterborough, Canada: Broadview Press Ltd. Peplau, L. A., & Cochran, S. D. (1981). Value orientations in the intimate relationships of gay men. Journal of Homosexuality, 6(3), 1-19. Reprinted in J. P. DeCecco (Ed.) (1988). Gay relationships (pp. 195-216). New York: Harrington Park Press. Peplau, L. A. (1981, March). What homosexuals want in relationships. Psychology Today, pp. 28-34, 37-38. Peplau, L. A. (1981). Interpersonal attraction. In D. Sherrod (Ed.), Social psychology, 2nd Ed. (pp. 195-229). New York: Random House. Hill, C. T., Peplau, L. A., & Rubin, Z. (1981). Differing perceptions in dating couples: Sex roles vs. alternative explanations. Psychology of Women Quarterly, 5(3), 418-434. Weeks, D. G., Michela, J. L., Peplau, L. A., & Bragg, M. E. (1980). The relation between loneliness and depression: A structural equation analysis. Journal of Personality and Social Psychology, 39(6), 1238-1244.
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Russell, D., Peplau, L. A., & Cutrona, C. E. (1980). The revised UCLA loneliness scale: Concurrent and discriminant validity evidence. Journal of Personality and Social Psychology, 39(3), 472-480. Rubin, Z., Hill, C. T., Peplau, L. A., & Dunkel-Schetter, C. (1980). Self-disclosure in dating couples: Sex roles and the ethic of openness. Journal of Marriage and the Family, 42(2), 305317. Peplau, L. A. (1980). Sexual aspects of lesbian relationships. Medical Aspects of Human Sexuality, 14(3), 107. Peplau, L. A. (1980). Lesbian mothers. Medical Aspects of Human Sexuality, 14(3), 136-137. Falbo, T., & Peplau, L.A. (1981). Power strategies in intimate relationships. Journal of Personality and Social Psychology, 38(4), 618-628. Rubenstein, C., Shaver, P., & Peplau, L. A. (1979, February). Loneliness. Human Nature, pp. 5865. Peplau, L. A., Russell, D., & Heim, M. (1979). The experience of loneliness. In I. H. Frieze, D. Bar-Tal, & J. S. Carroll (Eds.), New approaches to social problems: Applications of attribution theory (pp. 53-78). San Francisco, CA: Jossey-Bass. Peplau, L. A., & Perlman, D. (1979). Blueprint for a social psychological theory of loneliness. In M. Cook & G. Wilson (Eds.), Love and attraction (pp. 99-108). Oxford, England: Pergamon. Peplau, L. A. (1979). Power in dating relationships. In J. Freeman (Ed.), Women: A feminist perspective, 2nd Ed. (pp. 106-121). Palo Alto, CA: Mayfield Publishing. Reprinted (1984) in the 3rd Edition. Hill, C. T., Rubin, Z., Peplau, L. A., & Willard, S. G. (1979). The volunteer couple: Sex differences, couple commitment and participation in research on interpersonal relationships. Social Psychology Quarterly, 42(4), 415-420. Russell, D., Peplau, L. A., & Ferguson, M. (1978). Developing a measure of loneliness. Journal of Personality Assessment, 42(3), 290-294. Peplau, L. A., Russell, D., & Heim, M. (1978). Loneliness: A bibliography of research and theory. JSAS Catalog of Selected Documents in Psychology, 8, 38. (Ms. No. 1682.) Peplau, L. A., Cochran, S., Rook, K., & Padesky, C. (1978). Loving women: Attachment and autonomy in lesbian relationships. Journal of Social Issues, 34(3), 7-27. This article was awarded the Evelyn C. Hooker research award by the national Gay Academics Union, November 24, 1979. Reprinted in L. Richardson & V. A. Taylor (Eds.) (1983) Feminist frontiers: Rethinking sex, gender & society (pp. 408-419). Reading, MA: Addison-Wesley. Peplau, L. A., & Ferguson, M. (1978). Loneliness: A cognitive analysis. Essence, 2(4), 207220. (This is a Canadian gerontology journal that devoted a special issue to loneliness.)
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Hammen, C. L., & Peplau, L. A. (1978). Brief encounters: Impact of gender, sex-role attitudes, and partner's gender on interaction and cognition. Sex Roles, 4(1), 75-90. Peplau, L. A., Rubin, Z., & Hill, C. T. (1977). Sexual intimacy in dating relationships. Journal of Social Issues, 33(2), 86-109. Peplau, L. A., & Hammen, C. L. (1977). Social psychological issues in sexual behavior: An overview. Journal of Social Issues, 33(2), 1-6. Peplau, L. A., Rubin, Z., & Hill, C. T. (1976). The sexual balance of power. Psychology Today, November, pp. 142, 145, 147, 151. Reprinted in C. Gordon & G. Johnson (Eds.) (1976), Readings in human sexuality: Contemporary perspectives, 2nd Ed. New York: Harper & Row. Reprinted in Annual Editions (1980), Readings in personal growth and adjustment 80/81. Guilford, CT: Dushkin. Peplau, L. A. (1976). Fear of success in dating couples. Sex Roles, 2, 249-258. Peplau, L. A. (1976). Impact of fear of success and sex-role attitudes on women's competitive achievement. Journal of Personality and Social Psychology, 34, 561-568. Hill, C. T., Rubin, Z., & Peplau, L. A. (1976). Breakups before marriage: The end of 103 affairs. Journal of Social Issues, 32(1), 147-168. Reprinted in A. Skolnick & J. Skolnick (Eds.) (1977), Family in transition, 2nd Ed. Boston, MA: Little, Brown & Co. Reprinted in G. Levinger & O. C. Moles (Eds.) (1979), Divorce and separation: A survey of causes and consequences. New York: Basic Books. Reprinted in Peplau, L. A., Sears, D. O., Taylor, S. E., & Freedman, J. L. (Eds.) (1988), Readings in social psychology: Classic and contemporary contributions. Englewood Cliffs, NJ: Prentice-Hall. Rubin, Z., & Peplau, L. A. (1975). Who believes in a just world? Journal of Social Issues, 31(3), 65-90. Reprinted (1977) in Reflections, XII(1), 1-26. Rubin, Z., & Peplau, L. A. (1973). Belief in a just world and reactions to another's lot: A study of participants in the national draft lottery. Journal of Social Issues, 29(4), 73-94. Peplau, L. A. (1972). Intergroup behavior. In Psychology today: An introduction (pp. 545-563). Del Mar, CA: CRM Books. Peplau, L. A. (1972). Patterns of social behavior: The case of sex roles. In Psychology today: An introduction (pp. 487-500). Del Mar, CA: CRM Books. Peplau, L. A. (1967). Infantile autism. Perspectives in Psychiatric Care, 5(3), 112-122. Book Reviews
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Peplau, L.A. (1996). The wit and wisdom of a feminist sexologist. Psychology of Women Quarterly, 20, 173-174. (Review of "Sex is not a natural act and other essays") Peplau, L. A. (1994). Is it a relationship if we're not having sex? Contemporary Boston Marriages. Journal of Sex Research, 31(3), 243-245. (Review of "Boston Marriages: Romantic but Asexual Relationships among Contemporary Lesbians") Peplau, L. A. (1988). Review of "In search of parenthood: Coping with infertility and high-tech conception." Contemporary Psychology, 33(10), 919. Peplau, L. A. (1982). Review of "The Anatomy of Loneliness" and "In Search of Intimacy." Journal of Psychosocial Nursing, 20(11), 38-39. Peplau, L. A., & Gutek, B. (1979). Textbooks on the psychology of women: A review essay. Psychology of Women Quarterly, 4(1), 129-136. Peplau, L. A. (1979). Review of "Friends and Lovers." American Journal of Sociology, 84(6), 1513-1514. Peplau, L. A. (1977). Review of "The Hite Report" and "Sex and Personality." Psychology of Women Quarterly, 2(1), 86-88. Peplau, L. A. (1977). An Introduction to Women's Studies. Contemporary Psychology, 22(12), 933-934. (Review of "Beyond Intellectual Sexism") Peplau, L. A. (1977). Review of "Women and Achievement." Sex Roles, 3(6), 600-602. Peplau, L. A. (1975). Assessing sexual innovation in marriage. Contemporary Psychology, 20(12), 941-942. (Review of "Beyond Monogamy")
Selected Recent Paper Presentations, Invited Addresses and Posters Ghavami, N., Peplau, L. A., Sears, D. & Zawatsky, J. (January, 2012). Diagnosticity of gender and ethnic stereotypes. Society for Personality and Social Psychology, San Diego, CA. Peplau, L. A. (August, 2010). Marriage equality for same-sex couples: Perspectives from relationship research in the United States. Invited Presidential Symposium presented at the annual meeting of the American Psychological Association, San Diego, CA. Peplau, L. A. (August, 2010). Same-sex couples: Research, law and policy. Presented at the International Lesbian, Gay, Bisexual and Transgender Psychology Summer Institute, University of Michigan, Ann Arbor, MI. Hill, C. T., & Peplau, L. A. (July, 2008). Is love blind? Attractiveness ratings by self, partner, and others, and the outcome of dating relationships 25 years later. Paper presented at the International Congress of Psychology, Berlin, Germany.
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Fingerhut, A. D., deRoulhac, C., Natale, C., & Peplau, L. A. (2008, February). Heterosexuals attitudes toward gay men and lesbians: Predictors of positive and negative attitudes. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Albuquerque, NM. Frederick, D.A., & Peplau, L.A. (2007, January). The UCLA Body Matrices II: Computergenerated images of men and women varying in body fat and muscularity/breast size to assess body satisfaction and preferences. Poster presented at the annual meeting of the Society for Personality and Social Psychology, Memphis, TN. Mulrenan, T., Frederick, D.A., Sadeghi-Azar, L., Ha, J., Peplau, L.A., & Haselton, M.G. (2006, January). The UCLA Body Matrices as measures of body image and body type preferences. Poster presented at the annual meting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Laird, K., Mulrenan, T., Frederick, D.A., Grigorian, K., Peplau, L.A., & Haselton, M.G. (2006, January). Sex differences in preferences for dating a taller romantic partner. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Sadeghi-Azar, L., Frederick, D.A., Mulrenan, T., Peplau, A., Haselton, M.G., & Fessler, D.M.T. (2006, January). Representations of the ideal male and female bodies in popular media. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, Palm Springs, CA. Fingerhut, A. W., & Peplau, L. A. (2006, January). Symposium: Integrating social identity perspectives with research on the experiences of lesbians and gay men. Symposium presented at the annual meeting of the Society for Social and Personality Psychology, Palm Springs, CA. Frederick, D.A., Haselton, M., Peplau, L.A., Mansourian, A., & Allameh, S. (2005, January). Sex differences in desires for sexual variety. Poster presented at the annual meeting of the Society for Personality and Social Psychology Conference, New Orleans, LA. Ghavami, N., Fingerhut, W., & Peplau, L. A. (2005, January). A dual-identity approach to understanding stress experiences of lesbians and gay men. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA. Peplau, L.A., Frederick, D.A., Lever, J., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Society for Personality and Social Psychology Conference, New Orleans, LA. Sadeghi-Azar, L., Frederick, D.A., Allameh, S., Lever, J., & Peplau, L.A. (2005). Attitudes toward cosmetic surgery and the body across the lifespan. American Psychological Society Convention, Los Angeles, CA. Peplau, L.A., Frederick, D.A., Lever, J., Kroskrity, E. (2005). Body image satisfaction among lesbian, gay, and heterosexual adults. American Psychological Society Convention, Los Angeles, CA. Frederick, D.A., Lever, J., Peplau, L.A., Casey, J., & Berezovskaya, A. (2005). Does size matter? Attitudes toward breast size and shape among heterosexual adults. American Psychological Society Convention, Los Angeles, CA.
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Fingerhut. A.W., Peplau, L.A., & Ghavami, N. (2005, February). Gay and Lesbian Psychological Health: The Role of Identity. Poster presented at the National Multicultural Conference and Summit, Los Angeles, CA. Fingerhut, A. W., & Peplau, L. A. (2005, January). Stereotypes of women in the workforce: The role of sexual orientation and parental status. Poster presented at the annual meeting of the Society for Personality and Social Psychology, New Orleans, LA. Peplau, L. A., Lever, J., Frederick, D., Burklund, L., & Madrid, H. (2005, January). Correlates of body image dissatisfaction among 52,171 online respondents. Poster presented at the annual meeting of the Society for Social and Personality Psychology, New Orleans, LA. Peplau, L. A. (2004, November 12). New directions in research on womens sexual orientation. Invited colloquium, Institute for Social and Behavioral Research, Iowa State University, Ames, Iowa. Peplau, L. A. (2004, September 29). The development of sexual orientation in women: A socialpsychological analysis. Invited colloquium, Psychology and Womens Studies, University of Michigan, Ann Arbor, MI. Peplau, L. A., Fingerhut, A., & Ghavami, N. (2004, July). Individual differences in gay-related stress: A dual-identity perspective. Hill, C. T., & Peplau, L. A. (July, 2003). Sources of self-esteem: A 25-year study. Paper presented at the 29th Inter-American Congress of Psychology. Peplau, L. A., & Impett, E. A. (2003, April 11). Sexual compliance: Why partners make "sexual sacrifices." Invited presentation, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA. Peplau, L. A. (April 11, 2003). Gender differences in sex and relationships. Invited address, Society for the Scientific Study of Sexuality, Western Region Annual Conference, San Jose, CA. Hill, C. T., & Peplau, L. A. (March 28, 2003). Romantic beliefs and marital outcomes: A 25-year study. Paper presented at the Southeast Psychological Association, New Orleans, LA. Peplau, L. A. (August, 2002). Venus and Mars in the lab: New research on gender and sexuality. Invited Master Lecture, annual meeting of the American Psychological Association, Chicago, IL. Hill, C. T., & Peplau, L. A. (July, 2001). Life satisfaction: A 25-year follow-up of the Boston Couples Study. Presented at the VIIth European Congress of Psychology, London, England. Peplau, L. A., & Garnets, L. D. (May, 2001). A new paradigm for understanding womens sexual orientation. Presented at the annual meeting of the Western Psychological Association, Maui, Hawaii.
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Exhibit B
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Bibliography Amato, P. R (1996). Explaining the intergenerational transmission of divorce. Journal of Marriage and the Family, 58(3), 628-640. American Anthropological Association Statement on Marriage and the Family (Adopted by the Executive Board of the AAA on February 26, 2004). Retrieved June 10, 2012 from: http://www.aaanet.org/issues/policy-advocacy/Statement-on-Marriage-and-theFamily.cfm. American Psychiatric Association (1974). Position statement on homosexuality and civil rights. American Journal of Psychiatry, 131(4), p. 497 (official actions). American Psychiatric Association. (2005, July). Support of legal recognition of same-sex civil marriage. Retrieved June 10, 2012 from: http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%2 0Statements/ps2005_SameSexMarriage.pdf. American Psychological Association. (2004). Sexual orientation and marriage: Adopted by the APA Council of Representatives July 28 & 30, 2004. Retrieved June 10, 2012 from: http://www.apa.org/about/governance/council/policy/gay-marriage.pdf. Published in Paige, R. U. Proceedings of the American Psychological Association, American Psychologist, 60(5), p. 494. American Psychological Association. (2008). Answers to your questions: For a better understanding of sexual orientation and homosexuality. Washington, DC: Author. http://www.apa.org/topics/sexuality/sorientation.pdf.
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American Psychological Association. (2009). Report of the Task Force on Appropriate Therapeutic Responses to Sexual Orientation. Washington, DC: Author. http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. Bozett, F. W. (1982). Heterogenous couples in heterosexual marriages: Gay men and straight women. Journal of Marital and Family Therapy, 8(1), 81-89. Bramlett, M., & Mosher, W. (2002). Cohabitation, marriage, divorce, and remarriage in the United States. National Center for Health Statistics. Vital Health Statistics, 23(22). Carpenter, C. S., & Gates, G. J. (2008). Gay and lesbian partnership: Evidence from California. Demography, 45, 573-590. Chandra, A., Mosher, W. D., Copen, C., & Sionean, C. (2011, March 3). Sexual behavior, sexual attraction, and sexual identity in the United States: Data from the 2006-2008 National Survey of Family Growth. National Health Statistics Reports, No. 36. U.S. Centers for Disease Control. Cherlin, A. J. (2009). The marriage-go-round: The state of marriage and the family in America today. New York: Alfred A. Knopf. Conger, J. J. (1975). Proceedings of the American Psychological Association, Incorporated, for the year 1974: Minutes of the annual meeting of the Council of Representatives. American Psychologist, 30, 620-651. Coontz, S. (2007). The origins of modern divorce. Family Process, 46, 7-16. Division of Vital Statistics, National Center for Health Statistics, CDC, Marriage rates by State: 1990, 1995, and 1999-2010. Retrieved June 10, 2012 from: http://www.cdc.gov/nchs/data/nvss/marriage_rates_90_95_99-10.pdf. Division of Vital Statistics, National Center for Health Statistics, CDC, Divorce rates by State:
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1990, 1995, and 1999-2010. Retrieved June 10, 2012 from: http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99-10.pdf. Gove, W. R., Style, C. B., & Hughes, M. (1990). The effect of marriage on the well-being of adults: A theoretical analysis. Journal of Family Issues, 11, 4-35. Heaton, T. B. (2002). Factors contributing to increasing marital stability in the United States. Journal of Family Issues, 23(3), 392-409. Herek, G. M. (2000). Homosexuality. In A.E. Kazdin (Ed.), Encyclopedia of psychology (Vol. 4, pp. 149-153). Washington, DC: American Psychological Association. Herek, G. M. (2006). Legal recognition of same-sex relationships in the United States: A social science perspective. American Psychologist, 61, 607-621. Herek, G. M. (2009a). Sexual stigma and sexual prejudice in the United States: A conceptual framework. In D.A. Hope (Ed.), Contemporary perspectives on lesbian, gay and bisexual identities: The 54th Nebraska Symposium on Motivation (pp. 65-111). New York: Springer. Herek, G. M. (2009b). Hate crimes and stigma-related experiences among sexual minority adults in the United States: Prevalence estimates from a national probability sample. Journal of Interpersonal Violence, 24, 54-74. Herek, G. M. (2010). Sexual orientation differences as deficits: Science and stigma in the history of American psychology. Perspectives on Psychological Science, 5, 693-699. Herek, G. M., & Garnets, L. D. (2007). Sexual orientation and mental health. Annual Review of Clinical Psychology, 3, 353-375.
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Herek, G. M., Gillis, J. R., & Cogan, J. C. (2009). Internalized stigma among sexual minority adults: Insights from a social psychological perspective. Journal of Counseling Psychology, 56, 32-43. Herek, G. M., Norton, A. T., Allen, T. J., & Sims, C. L. (2010). Demographic, psychological, and social characteristics of self-identified lesbian, gay, and bisexual adults in a U.S. probability sample. Sexuality Research and Social Policy, 7, 176-200. Higgins, D. J. (2006). Same-sex attraction in heterosexually partnered men: Reasons, rationales and reflections. Sexual and Relationship Therapy, 21, 217-228. Hu, Y., & Goldman, N. (1990). Mortality differentials by marital status: An international comparison. Demography, 27,233-250. Johnson, N. J., Backlund, E., Sorlie, P. D., & Loveless, C. A. (2000). Marital status and mortality: The National Longitudinal Mortality Study. Annals of Epidemiology , 10, 224238 . Just the Facts Coalition. (2008). Just the facts about sexual orientation and youth: A primer for principals, educators, and school personnel. Washington, DC: American Psychological Association. Retrieved August 16, 2012 from: http://www.apa.org/pi/lgbt/resources/justthe-facts.pdf. Kaiser Family Foundation. (2001). Inside-out: A report on the experiences of lesbians, gays, and bisexuals in America and the public's view on issues and politics related to sexual orientation. Menlo Park, CA: Author. Retrieved August 16, 2012 from: http://www.kff.org/kaiserpolls/upload/New-Surveys-on-Experiences-of-Lesbians-Gaysand-Bisexuals-and-the-Public-s-Views-Related-to-Sexual-Orientation-Report.pdf. Kim, H., & McKenry, P. C. (2002). The relationship between marriage and psychological
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well-being: A longitudinal analysis. Journal of Family Issues, 23, 885-911. Kinsey, A. C., Pomeroy, W. B., & Martin, C. E. (1948). Sexual behavior in the human male. Philadelphia, PA: W. B. Saunders. Kinsey, A. C., Pomeroy, W. B., Martin, C. E., & Gebhard, P.H. (1953). Sexual behavior in the human female. Philadelphia, PA: W. B. Saunders. Kurdek, L. A. (2004). Are gay and lesbian cohabiting couples really different from heterosexual married couples? Journal of Marriage and Family, 66, 880-900 Kurdek, L. A. (2005). What do we know about gay and lesbian couples? Current Directions in Psychological Science, 14, 251-54. Lamb, K. A., Lee, G. R., & DeMaris, A. (2003). Union formation and depression: Selection and relationship effects. Journal of Marriage and Family, 65, 953-962. Laumann, E. O., Gagnon, J. H., Michael, R. T., & Michaels, S. (1994). The social organization of sexuality: Sexual practices in the United States. Chicago: University of Chicago Press. Lehrer, E. L., & Chiswick, C. U. (1993). Religion as a determinant of marital stability. Demography, 30(3), 385-404. Meyer, I. H. (2003). Prejudice, social stress, and mental health in lesbian, gay, and bisexual populations: Conceptual issues and research evidence. Psychological Bulletin, 129, 674697. Meyer, I. H. (2007). Prejudice and discrimination as social stressors. In I. H. Meyer & M. E. Northridge (Eds.), The health of sexual minorities (pp. 242-267). New York: Springer. Nock, S. L. (1995). A comparison of marriages and cohabiting relationships. Journal of Family Issues, 16, 53-76.
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Pachankis, J. E. (2007). The psychological implications of concealing a stigma: A cognitiveaffective-behavioral model. Psychological Bulletin, 133, 328-345. Pan American Health Organization. (2012). Cures For An Illness That Does Not Exist: Purported Therapies Aimed At Changing Sexual Orientation Lack Medical Justification and Are Ethically Unacceptable. Retrieved June 10, 2012 from: http://new.paho.org/hq/index.php?option=com_docman&task=doc_download&gid=1770 3&Itemid=. Pascoe, E. A., & Richman, L. S. (2009). Discrimination and health: A meta-analytic review. Psychological Bulletin, 135, 531-554. Peplau, L. A., & Cochran, S. D. (1990). A relationship perspective on homosexuality. In D. P. McWhirter, S. A. Sanders, & J. M. Reinisch (Eds.), Homosexuality/heterosexuality: Concepts of sexual orientation (pp. 321-349). New York: Oxford University Press. Peplau, L. A., & Fingerhut, A. W. (2007). The close relationships of lesbians and gay men. Annual Review of Psychology, 58. 10.1-10.20. Peplau, L. A., & Garnets, L. D. (2000). A new paradigm for understanding womens sexuality and sexual orientation. Journal of Social Issues, 56 (2), 329-350. Proulx, C. M., Helms, H. M., & Buehler, C. (2007). Marital quality and personal well-being: A meta-analysis. Journal of Marriage and Family, 68, 576-593. Raley, R. K., & Sweeney, M. M. (2007). What explains race and ethnic variation in cohabitation, marriage, divorce, and non-marital fertility? California Center for Population Research On-Line Working Paper Series, CCPR-026-07. Ramos, C., Goldberg, N. G., & Badgett, M. V. L. (2009, May). The effects of marriage equality in Massachusetts: A survey of the experiences and impact of marriage on same-sex
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couples. The Williams Institute, UCLA Law School, Los Angeles, CA. Retrieved June 10, 2012 from: http://williamsinstitute.law.ucla.edu/wp-content/uploads/RamosGoldberg-Badgett-MA-Effects-Marriage-Equality-May-2009.pdf. Schoenborn, C. A. (2004). Marital status and health: United States, 1999-2002. Advance Data from Vital and Health Statistics, Number 351, December 15, 2004. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services. Teachman, J. D. (2002). Stability across cohorts in divorce risk factors. Demography, 39(2),331 351. Testa, R. J., Kinder, B. N. & Ironson, G. (1987). Heterosexual bias in the perception of loving relationships of gay males and lesbians. Journal of Sex Research, 23, 163-72. Thoits, P. S. (2010). Stress and health: Major findings and policy implications. Journal of Health and Social Behavior, 51 no. 1 supplement, S41-S53. Umberson, D. (1992). Relationships between adult children and their parents: psychological consequences for both generations. Journal of Marriage and the Family, 54(3), 664-674. Waite, L.T. (1995). Does marriage matter? Demography, 32, 483-507. Waldron, I., Hughes, M. E., & Brooks, T. L. (1996). Marriage protection and marriage selectionprospective evidence for reciprocal effects on marital status and health. Social Science and Medicine, 43, 113-123.
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Exhibit 6
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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK, et al., Plaintiffs, v. BRIAN SANDOVAL, et al., Defendants, and COALITION FOR THE PROTECTION OF MARRIAGE, Defendant-Intervenor. No. 2:12-CV-00578-RCJ-PAL SUPPLEMENTAL DECLARATION OF LETITIA ANNE PEPLAU, PH.D. IN SUPPORT OF PLAINTIFFS COMBINED OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT SANDOVAL, DEFENDANT GLOVER, AND DEFENDANTINTERVENOR COALITION FOR THE PROTECTION OF MARRIAGE
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I, Letitia Anne Peplau, Ph.D., hereby declare and state as follows: 1. I have been retained by counsel for Plaintiffs as an expert in connection with the
above-referenced litigation. I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. 2. I have already provided a declaration of my opinions in this litigation. A complete
explanation of my background, qualifications, expert testimony experience, and compensation appears in my declaration dated August 20, 2012. Dkt. 86-2. 3. I have reviewed the Motion for Summary Judgment and Memorandum in Support
filed by Defendant-Intervenor Coalition for the Protection of Marriage (Coalition). Dkt. 72. Nothing in the motion disproves or contradicts the testimony I offered in my original declaration. I have been called upon to respond to certain assertions made in the motion, including that (1) allowing same-sex couples to marry would harm the institution of marriage and that (2) marriages between same-sex couples are more focused upon love and personal fulfillment and less focused upon duty and responsibility than marriages between different-sex couples. I submit this further declaration in order to respond to these assertions, which are unsupported by, and disproven by, the evidence. I. Allowing Same-Sex Couples to Marry Will Not Harm The Institution of Marriage or Minimize Its Importance in Society. 4. The Coalition asserts that allowing same-sex couples would de-institutionalize
the man-woman marriage institution, and defines de-institutionalization as when a social institution constituted by [previously institutionalized public] meanings and norms disappears. Dkt. 72 at 3. To the extent that the Coalition contends that allowing same-sex couples to marry would cause the institution of marriage to disappear or to be negatively affected in any way this is false and misleading. 5. Although marriage has changed over the years, it has not disappeared as a social
institution. Marriage continues to be held in high esteem by most Americans, and most Americans either have married or would like to marry. See Saad, L. (2006), Americans Have Complex Relationship With Marriage, Gallup News Service, retrieved September 27, 2012 from:
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http://www.gallup.com/poll/23041/americans-complex-relationship-marriage.aspx. Allowing same-sex couples to marry, as six states and the District of Columbia currently do, certainly has not caused the institution of marriage to cease to exist or to be adversely affected. 6. There is no empirical reason to believe that allowing marriage by same-sex
couples will lead different-sex couples to abandon the institution of marriage, either by declining to marry or ending their current marriages. To the contrary, institutions are stronger when they have more (rather than fewer) members. Allowing same-sex couples to marry would bring additional people within the institution of marriage who are otherwise denied membership rights. As explained in my original declaration, the factors that cause different-sex couples to marry or divorce and that contribute to relationship quality and stability are well-understood, and they function independently of whether same-sex couples may marry. 7. The notion that permitting same-sex couples to marry will cause some
heterosexual people either for religious or moral reasons to reject marriage as unacceptable or repugnant is also far-fetched and unsupported by anything but conjecture. Even if same-sex couples could marry across the United States, those same-sex couples who married would still constitute a small percentage of all married American couples. It is hard to fathom how this tiny minority would suddenly become the baseline for the marriage experience. II. Same-Sex Couples Are Similar To Different-Sex Couples; There Is No Support For The Notion That Same-Sex Couples Are More Focused On Love And Personal Fulfillment And Less Focused on Duty and Responsibility Than Different-Sex Couples. 8. The Coalition asserts that allowing same-sex couples to marry would teach[] that
marriage is a private relationship between two people created primarily to satisfy the needs of adults rather than children. Dkt. 72 at 14. First, it does not make sense to suggest that same-sex couples who want to marry are less focused than different-sex couples on duty and responsibility because, as discussed in my original declaration, marriage itself creates many duties and responsibilities. Same-sex couples who marry are embracing the same responsibilities as different-sex couples who marry. Allowing same-sex couples to marry has no necessary implication for the many rights and responsibilities of spouses, for expectations about trust and
Exhibit 7
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JON W. DAVIDSON (pro hac vice) TARA L. BORELLI (pro hac vice) PETER C. RENN (pro hac vice) SHELBI DAY (pro hac vice) LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 jdavidson@lambdalegal.org, tborelli@lambdalegal.org prenn@lambdalegal.org, sday@lambdalegal.org Tel: 213.382.7600 | Fax: 213.351.6050 CARLA CHRISTOFFERSON (pro hac vice) DAWN SESTITO (pro hac vice) MELANIE CRISTOL (pro hac vice) RAHI AZIZI (pro hac vice) OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071 cchristofferson@omm.com, dsestito@omm.com mcristol@omm.com, razizi@omm.com Tel: 213.430.6000 | Fax: 213.430.6407 KELLY H. DOVE (Nevada Bar No. 10569) MAREK P. BUTE (Nevada Bar No. 09989) SNELL & WILMER LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 kdove@swlaw.com, mbute@swlaw.com Tel: 702.784.5200 | Fax: 702.784.5252 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BEVERLY SEVCIK, et al., Plaintiffs, v. BRIAN SANDOVAL, et al., Defendants, and COALITION FOR THE PROTECTION OF MARRIAGE, Defendant-Intervenor. No. 2:12-CV-00578-RCJ-PAL DECLARATION OF GARY M. SEGURA, PH.D. IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.
I, Gary M. Segura, Ph.D., hereby declare and state as follows: PRELIMINARY STATEMENT Expert Background and Qualifications 1. I am a Professor of American Politics in the Department of Political Science at
Stanford University. I have been retained by counsel for Plaintiffs as an expert in connection with the above-referenced litigation. I have actual knowledge of the matters stated in this declaration and could and would so testify if called as a witness. My background, experience and list of publications from the last 10 years are summarized in my curriculum vitae, which is attached as Exhibit A to this Declaration. 2. In the past four years, I have testified as an experteither at trial or through
declarationor been deposed as an expert in Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.), Dragovich v. U.S. Dept of the Treasury, CV 4:10-01564-CW (N.D. Cal.), Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010), Massachusetts v. United States HHS, 698 F. Supp. 2d 234 (D. Mass. 2010), Pedersen v. Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), and Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC (D. Haw.). 3. I received a Ph.D. in American Politics and Political Philosophy from the
Department of Political Science at the University of Illinois in Urbana-Champaign in 1992. My tertiary field of emphasis was political methodology. My MA was also from the University of Illinois in 1990, and I earned my undergraduate degree from Loyola University of New Orleans in 1985. 4. I am also the founding Director of the Institute on the Politics of Inequality, Race
and Ethnicity at Stanford, and the founding co-Director of the Stanford Center for American Democracy. In the latter role, I am one of the Principal Investigators of the American National Election Studies for 2009-2013, the premier data-gathering project for scholars of American elections. 5. My primary emphases in my scholarly research and writing are on public
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attitudes, opinion, and behavior with respect to politics, and minority group politics. I have taught classes on elections, public opinion, representation, Congress, Latino politics, gay and lesbian politics, race and racism, the Voting Rights Act, inequality and American democracy, interest group politics, philosophy of science, research design, and statistical analysis (introductory and advanced). 6. To date, I have authored 44 article-length publications in professional journals
and edited volumes. Those journals include the American Political Science Review, the American Journal of Political Science, Political Research Quarterly, Political Behavior, and the Journal of Politics. I edited Diversity in Democracy: Minority Representation in the United States, published by the University of Virginia Press in 2005. I am also the co-author of Latino Lives in America: Making It Home, addressing new patterns of Latino life and politics in the U.S., published by Temple University Press in 2010. I have a third book that was published in 2011 with Congressional Quarterly Press, entitled The Future is Ours: Minority Politics, Political Behavior, and the Multiracial Era of American Politics, a comparative exploration of political behavior across American racial and ethnic minority groups and how such behaviors will shape American party coalitions in the coming decades. I am the co-author of a fourth book, Latinos in the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences, which was published earlier this year. 7. I am the former President of the Midwest Political Science Association
(MPSA), the second-largest organization of American political scientists. In 2006, I was the General Program Chair of the MPSA Annual Meeting. In 2011, I was elected Vice-President and Program Chair of the Western Political Science Association for 2012-2013, and will serve as President in 2013-14. In addition, I am a member and former Executive Council Member of the American Political Science Association, member and former Executive Council Member of the Western Political Science Association, and member of the Southern Political Science Association. I serve or have served on the editorial boards of the American Journal of Political Science, Journal of Politics, and Political Research Quarterly. I am a member of the Sexuality and Politics organized section of the American Political Science Association, have served on the
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Southern Political Science Associations Committee on the Status of Gays and Lesbians, and was part of the Executive Committee of the Sexuality Studies Program at the University of Iowa. 8. In preparing this declaration, I reviewed the Complaint in this case and the
materials listed in the attached list of sources (Exhibit B). I rely on those documents, in addition to the documents specifically cited as supportive examples in particular sections of this declaration, as support for my opinions. I have also relied on my years of experience in the field of political science, as set out in my curriculum vitae (Exhibit A), and on the materials listed therein. 9. I am being compensated for this effort at a rate of $250.00 per hour. I will be
compensated at $350.00 per hour for work performed while traveling, and I will be reimbursed for expenses incurred while traveling in connection with my services. My compensation does not depend on the outcome of this litigation, the opinions I express, or the testimony I provide. II. Summary of Conclusions 10. Gay men and lesbians do not possess a meaningful degree of political power and
are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interests. The powerlessness of gay men and lesbians is evidenced in numerous ways, and they are subject to political exclusion and suffer political disabilities greater than other groups that have received suspect classification protection from the courts. III. Political Powerlessness in General 11. Any evaluation of the political power of a particular group in the United States
takes place in the context of a general understanding of the role that groups play in American politics. From James Madison onward, American democracy frequently has been understood as a pluralist system, in which competition among groups should ideally ensure that no one interest becomes permanently dominant, or determines outcomes over a large number of decisions over a long time. Madison believed that in an extended republic, coalitions commanding the day on one issue would dissolve and be replaced by a different majority coalition on the next issue. 12. Modern political scientists generally approach pluralism through the concept of
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group interests. In what David Truman calls disturbance theory, the action of one group raises challenges to the interests of another, causing the latter to react, and preventing a single interest from dominating the political process. However, scholarly work on collective action (including Mancur Olson among others) has found that not all groups have an equal opportunity to form and act successfully to stave off threats to their interests. Differences in group size, resources, and position in the class structure mean that some groups are inherently better positioned to act on their own behalf than others, and some groups suffer a permanent disadvantage that places them at the mercy of others. Reflecting this concern, eminent political scientist Elmer Eric Schattschneider famously wrote, The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent. Those with greater resourcestime, money, and numbersexert greater influence on the political process. Minorities, by definition, are less numerous than the majority. 13. The existence of societal prejudice against a particular group makes the
accumulation of resources, including finances and allies, more difficult. Moreover, that same prejudice imposes an additional systematic burden because it tends to prevent that groups interests or policy preferences from receiving due consideration by other actors in the political process, or causes that consideration to be sacrificed for the sake of political expediency. Relative to minority groups that are otherwise similarly situated, a group that suffers such prejudice does not receive an equivalent hearing in political contestation and debate. Constitutions (and courts, through judicial review) play the role of the Madisonian corrective in the pluralist system by protecting disadvantaged minorities from majoritarian excesses and from effective exclusion from the political process. 14. Political power refers to a persons or groups demonstrated ability to extract
favorable (or prevent unfavorable) policy outcomes from the political system. In a wellestablished and commonly cited definition, Robert Dahl wrote that A has power over B when A is able to compel B to do something that B otherwise would not do. Thus, simple meetings of the mind are insufficient to demonstrate the exercise of power. One does not have power over those
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who, for other reasons, already agree. For example, in the last national election, millions voted for the same candidate I did, but this is not evidence of my electoral influence. 15. Power may also be reflected in the content of the political agenda, the issues that
are considered for legislative action. More powerful political actors face fewer legislative threats to their interests than less powerful actors. The very circumstance of being forced to defend interests against potential legislative action is a reflection of weakness rather than strength. 16. Groups that lack political power may, on occasion, receive pledges of support, or
even desirable legislative outcomes, that they themselves lack the power to compel through the political process. An elected official may arrive at a position on a policy or proposal for their own reasons unrelated to the specific communicated preferences of the minority groups constituents. 17. In some instances, the minority preferences may be entirely beside the point. For
example, an elected official may choose not to support a bill or policy proposal because he or she may determine that the policy has implications adverse to other interests or because the costs of implementation or enforcement of the policy are too great. 18. Positive legislative outcomes may also be the result of affinity or sympathy from
legislators in a position to bestow them. An elected official may decide not to support a bill or policy proposal that discriminates against, singles out, or mistreats a minority group because he or she independently believes that discriminating against, singling out, or mistreating the minority group is wrong. But since these pledges or outcomes are not the result of an exercise of political power by the minority group, they are not necessarily indicative of a groups actual political power. Moreover, they are significantly more vulnerable to reversal than those achieved through the exercise of actual power. The affinity or sympathy that gave rise to the support could dissipate or flatten, and is likely to be abandoned in the face of subsequent opposition, and in the absence of sufficient power and influence of the minority group to counter opposition. 19. For example, in the 2011 legislative debate over the legalization of marriage for
same-sex couples in the Maryland House of Delegates, several members of the chamber who had co-sponsored the legislationand even some who had solicited endorsements and donations
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during the election cycle on this basisultimately voted against it in committee, publicly announced their intention to vote against it on the floor, and subsequently did so. These legislators apparent support in the earlier stage of the legislative process was costless, and withered in the face of mobilized opposition and as an actual roll-call vote approached. 20. Following Dahls understanding, power can be illustrated only in comparison to a
baseline understanding of the decision-makers preferred actions. That is, to demonstrate that power had been at work, one would need to observe successful instances of opinion change on the part of a legislator in the face of positive or negative sanction or, alternatively, electoral change precipitated by the ire of the dissatisfied constituency. 21. Apparent policy agreement is a particularly erroneous measure of power when
mere agreement requires no action on the part of the policy-maker. Again, the example of candidates and officials endorsing a policy position, only to recant that support when an actual vote approaches, illustrates the illusory nature of this form of support. 22. My opinion does not rest on the extreme assumption that in no place, at no time,
under any circumstances, have gay men and lesbians won any outcome. 23. Rather, my view is that one must weigh the relative impact of positive and
negative outcomes against the numerosity of moments of contestation and the insecure nature of legislative gains. Policy successes should not be considered in isolation. While legislative gains have occurred in some states and localities, numerous jurisdictions have adopted statutes and constitutional amendments expressly in opposition to the interests of gay men and lesbians. Even an assessment of trend requires consideration of the relative frequency of positive and negative outcomes and the stakes involved in each of the policy debates. 24. Policy successeswhether at the state or federal levelare insecure so long as
the rights and legal status of lesbians and gays remains a subject of legislative action. We must consider the frequency with which legislative gains have been repealed, turned back by the voters, or foregone altogether, as well as the serious risk of repeal of legislative gains after each election cycle in which political power shifts to a different political party. Recent policy modifications, such as the adoption of a mechanism that led to the end of the Dont Ask, Dont
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Tell policy, illustrate precisely this dynamic. Several prospective Republican presidential candidates who ran for office in the 2012 Republican primary expressed support for a repeal of this legislation and the reinstatement of Dont Ask, Dont Tell, a view also shared by members of the new House majority and Republican members of the Armed Services Committee. Similarly, after the Maine legislature passed legislation in 2009 to provide same-sex couples access to marriage, voters overturned the law a few months later by referendum. The Washington and Maryland legislatures also enacted legislation this year to allow same-sex couples to marry, but opponents of the legislation appear to have gathered sufficient signatures to subject both measures to a referendum by popular vote in November 2012. 25. Even positive outcomes for gay men and lesbians that are secured through court
rulings are vulnerable to popular or legislative rollback. For example, in response to the Iowa Supreme Courts ruling that lesbians and gay men could not be excluded from the institution of civil marriage, anti-gay forces like the National Organization for Marriage organized a nationally funded campaign to defeat three of the members of that court in judicial retention elections in November 2010, and were ultimately successful in defeating all three. The defeat of state jurists facing retention elections has the dual effect of weakening that courts majorityraising the possibility of their reversing the previous decisionas well as chilling similar action by jurists in other states whose judicial views might otherwise lead them to similar conclusions. 26. Furthermore, many of the policy successes that have benefitted gay men and
lesbians are measures that remediate or repeal express, de jure discrimination against the group. Remediation of existing discrimination and disadvantage should be distinguished from affirmative political power. For example, the adoption of hate crimes statutes inclusive of sexual orientation, while a success for gay men and lesbians, was necessary only because there is such prevalent bias-related violence against gay men and lesbians. While a fair assessment of the relative political power of gay men and lesbians would include the adoption of such legislation, it must also include a consideration of the underlying behavior and bias that gave rise to the need for the legislation, which is an indicator of political powerlessness, not strength. 27. In light of the political disadvantages still faced by a small, targeted, and disliked
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group, I conclude that gay men and lesbians are powerless to secure basic rights within the normal political processes. 28. Traditional markers of political powerlessness include systematic disadvantages
in the political process; the existence of significant prejudice, stigmatization, or de facto or de jure second-class status; or an inability, alone or in concert with reliable coalition partners, to secure basic rights or equal treatment from and within the political process. Here, I organize traditional markers of political powerlessness into two categories: (1) manifestations of power and powerlessness, on which gays and lesbians score poorly; and (2) factors that contribute to political disadvantage, on which gays and lesbiansto their detrimentscore high. IV. Political Powerlessness of Gays and Lesbians A. 29. Manifestations of Political Powerlessness Although an exhaustive catalog is impossible, the lack of meaningful political
power possessed by gay men and lesbians is reflected in numerous features of the nations laws, institutions, and political history that are adverse to policy outcomes favored by and important to gay men and lesbians. Some examples are discussed below. The political powerlessness of gay men and lesbians is evidenced by their inability to bring an end to pervasive prejudice and discrimination, and to secure desired policy outcomes and prevent undesirable outcomes on fundamental matters that closely and directly impact their lives. Furthermore, the demonstrated vulnerability of occasional and geographically confined policy gains to reversal or repeal is indicative of a role played by affinity or sympathy, rather than the exercise of meaningful political power by gays and lesbians. (1) Absence of Statutory Protection/Presence of De Jure Statutory Inequality
30.
To date, there is no federal legislation prohibiting discrimination against gay men
and lesbians in employment, education, access to public accommodations, or housing. Indeed, the history of the Employment Non-Discrimination Act (ENDA) provides a good example of gay men and lesbians inability to compel policy outcomes for which they actively advocate. ENDA, which would extend employment protections on the basis of sexual orientation (and in some
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versions, gender identity) has been introduced regularly since 1994 (with earlier versions existing as far back as the 1970s), but has never passed both houses of Congress. It has failed to win passage in both Republican- and Democratic-controlled Congresses. While the legislation attracts many co-sponsors, one cannot test the reliability or strength of this support in the absence of a recent and meaningful vote, or any realistic chance of its passage. The almost complete absence of legislative progress on the issue suggests that, at the very least, it is not a legislative priority for most legislators or the leadership of either party and, at worst, that the support is rhetorical and without substance. 31. In 1996, Congress adopted the Defense of Marriage Act, or DOMA, which,
among other things, prevented even legally married same-sex couples from filing joint tax returns, inheriting social security benefits, and obtaining all of the other rights afforded to married individuals by federal law. This preclusion of rights acquisition was signed into law by a Democratic president. Until recently, litigation against DOMA was actively resisted by both Democratic and Republican administrations. Indeed, until February 2011, the Obama Justice Department defended the constitutionality of DOMA despite the administrations public support for its legislative repeal. And the recent decision by the Department of Justice to cease its defense of DOMA in court came only after one house of Congress passed into the control of the opposite party, thus allowing that body the opportunity to intervene in the litigation. In short, it was a change of course without immediate practical effect. The same is true for President Obamas and Vice President Bidens recently announced personal support for the freedom to marry for same-sex couples, and the addition of this position to the Democratic platform in 2012. Their personal views and the platform have no practical effect on the exclusion from marriage faced by same-sex couples across the country. More to the point, in no instance can we identify an effect of lesbian and gay political power at work, here. Gay and lesbian voters were in no position to insist on these changes, nor are they able to compel candidates across the party to abide by them. Properly understood, they reflect affinity of the current President and the platform committee, but not power.
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32.
Despite a long-documented record of violence against gay men and lesbians,
attempts to extend existing federal hate crimes to include violent crimes based on the perceived sexual orientation of the victim reached fruition only in 2009, after more than a decade of advocacy by civil rights groups and supporters. Previously, gays and lesbians enjoyed virtually no such federal protection. The legislative process that produced even this positive outcome is illustrative of the political powerlessness of gay men and lesbians. To provide political cover, the bill extending hate crimes protections to gays and lesbians was attached to and adopted as part of a Defense Appropriations Bill. Even under these circumstances, 75% of Republican members of the Senate voted against it. In the House of Representatives, 131 of 175 Republican members voting (again, 75%) also opposed the hate crimes provision, illustrating at once the depth of opposition to even ameliorative measures that benefit gay men and lesbians, as well as the fragility of the institutional support for such outcomes. It is again worth noting that the impetus for this legislation was the pattern of violence directed at gay men and lesbians, a circumstance that provides important context for why the adoption of such a provision need not represent an exercise of power. 33. In 1993, Congress codified the militarys Dont Ask, Dont Tell (DADT)
policy, under which lesbians and gay men were required to conceal their sexual orientation in order to serve in the military, were investigated if suspected to be gay, and were discharged if they disclosed or were found to be gay. Like the Defense of Marriage Act, this legislation was signed by a Democratic president. In December 2010, Congress adopted a provision with an administrative mechanism that led to the end of this policy. But the circumstances under which even this positive outcome was achieved highlight the ultimate political powerlessness of gays and lesbians. The DADT policy was in effect for over 17 years and, despite significant evidence of abuseincluding discharges initiated based on unsubstantiated allegations and third-party accusations, and aggressive investigations beyond the bounds of the policyand its cost to the military, repeal had not seriously been considered. Both Republican and Democratic administrations defended DADT in court. The current Democratic administration discouraged legislative attempts to attach legislation repealing DADT to the Defense Authorization bill in the
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summer of 2010, or indeed at any point prior to the November 2010 election. There was no legislative action on the policy for most of the 111th Congress, beyond committee hearings, and despite widespread shifts in public opinion on this issue, no final action was taken prior to the general election. When the matter was finally taken up during the lame-duck session, Republican members offered fierce opposition in both legislative chambers. Of 175 votes cast in the House by Republican Party members, 160 (or 91.4%) were against the provision to repeal DADT. In the Senate, 31 of 39 Republican senators (79.5%) opposed the repeal. Like the hate crimes legislation, the DADT repeal illustrates the limited access gay men and lesbians have to the legislative process because of such stalwart opposition. 34. On the state level, there is no statutory protection against discrimination in
employment or public accommodations based on sexual orientation in twenty-nine states. 35. De jure inequality also exists in state constitutional law. In 1990, there was not a
single state constitutional provision that targeted gay men and lesbians for unequal treatment. Today, in over three-fifths of the states there is now constitutionally-established inequalitythat is, the exclusion of gay men and lesbians from the civil institution of marriage is formally written into the framework of government. Indeed, in many states, including Nevada, voters passed ballot initiatives to amend their state constitutions to prohibit same-sex couples from marrying even after the state legislature had already passed statutes barring same sex couples from marrying. At least 10 additional states affirmatively exclude gay men and lesbians from civil marriage by statute but have not yet amended their constitutions. 36. The presence of domestic partnership and civil union laws adopted in various
states, rather than viewed as an accomplishment, is best understood as an illustration of the political weakness of gay and lesbian political efforts. These laws are enacted for one of two reasons: either (1) civil marriage equality is politically unattainable in a state, either through the array of existing political forces or the presence of a constitutional barwhich also illustrates the weakness of lesbian and gay politicsor (2) the enactment of a domestic partnership or civil union law would have the effect of complying with a court order to address gay and lesbian exclusion, as was the case when Vermont originally adopted civil unions. Notably, in Vermont,
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the civil union law was the legislatures way of not granting civil equality to lesbian and gay citizens, despite a court order. (2) Repeal or Pre-Emption of Legislative or Judicial Protections Through Ballot Initiatives
37.
Evidence from the past two decades in particular has demonstrated that gay men
and lesbians are especially vulnerable in the context of direct democracy. That is, positive legislative outcomes achieved at the state and local levels are often insecure. Initiatives and referenda frequently and effectively have been used to reverse or pre-empt the legislative grant at the state or local levels of policies benefiting or protecting gays and lesbians. These ballot initiatives can be broken into three groups: (1) those which overturn anti-discrimination policies, (2) anti-marriage initiatives, and (3) restrictions on adoption. 38. Overturning anti-discrimination policiesThe first wave of ballot actions on gay
and lesbian rights began in the early 1970s, but reached its peak in the 1990s. The most common form was citizen initiatives to overturn municipal, county, or state extensions of antidiscrimination policies to sexual orientation. These ballot actions were generally successful. Legislative enactments were overturned in cities and counties across the country, including Santa Clara County and the City of San Jose, California; Tacoma, Washington; Lewiston, Maine; Lansing, Michigan; St. Paul, Minnesota; Wichita, Kansas; and perhaps most famously, MiamiDade County, Florida. A very small number of pro-gay votes also occurred and, not surprisingly, did not fare as well, including the defeat of a voter attempt to compel the Davis, California City Council to enact a gay rights ordinance. Haider-Markel and colleagues (2007) identified 143 votes from the 1970s through 2005, and found that gay and lesbian rights were defeated or overturned in more than 70% of the caseswith the opponents of those rights prevailing at about the same rate for local and state elections. The frequency of electoral and policy conflict over non-discrimination statutes declined once the focus of the struggle increasingly centered on preventing legal recognition of same-sex couples relationships. It is worth noting that many anti-gay measures amended city charters or state constitutions to increase the burden on gays and lesbians and their supporters for accomplishing policy change, such as Colorados Amendment 2,
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struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). The general approach of such measures was to prohibit legislative action preemptively, and require that any change be through popular, majority vote (with all of the disadvantages for minority rights this carries). Most recently, the state of Tennessee adopted a new anti-discrimination law in May of last year that specifically forbid any jurisdiction from enacting any anti-discrimination measures that went beyond the protections in state law (which currently excludes lesbians, gay men, bisexual and transgender people from all anti-discrimination protections). As a result, Nashvilles two ordinances protecting gay men and lesbians from workplace discrimination were rendered unenforceable. Similar measures are being advocated in other state legislatures. 39. Anti-marriage initiativesIn 2004 alone, anti-marriage equality ballot initiatives
passed in 13 states. To date, gay and lesbian marriage rights have been voted on at the state level 35 times, most recently in North Carolina on May 8, 2012. In only one instance did the pro-gay position win, when Arizonas Proposition 107, which also would have affected unmarried heterosexual couples, failed in 2006; the constitutional amendment passed handily in 2008 when it was narrowed to affect only gay men and lesbians. (Colorado, likewise, had two competing anti-marriage initiatives, only one of which failed. The two appeared simultaneously on the ballot, and although the harsher initiative failed, a more narrowly tailored effort passed on the same day.) 40. In Maine, the state legislature managed to adopt marriage equality for same-sex
couples through statute. That policy success was short lived, as a popular majority was able to overturn legislative action and reinstate the ban on marriage between same-sex couples through statewide ballot on Question 1. This outcome was secured with massive intervention from national anti-gay organizations, such as the National Organization for Marriage, as well as substantial investment by religious organizations, including the Roman Catholic Church, whose role was documented and touted in Catholic media sources. Campaign materials used by interests opposing marriage equality were, in some instances, identical to those used in the campaign to repeal marriage equality in California via Proposition 8, illustrating the vast and national reach of those interests working against the interests of gay men and lesbians.
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41.
AdoptionIn five states, gay men and lesbians are prohibited from adopting
children. Some of these bans were adopted recently. For example, in 2008, Arkansas voters adopted Arkansas Act One, which prohibited adoption by unmarried cohabitating couples, an act conceived with regard toand targeted atsame-sex couples. Act One was struck down in April 2011 as an unconstitutional infringement on the right to privacy by the Arkansas Supreme Court. That decision notwithstanding, it is possible, and I think likely, that these initiatives or legislative actions will appear elsewhere in the future. Indeed, Arizona recently enacted a statutory preference for heterosexuals in the states foster and adoption programs. In the 2008 American National Election Study, 47.6% of respondents nationwide felt that gay men and lesbians should be prohibited from adopting. Since that percentage varies widely across states, I and others expect initiatives to prohibit same-sex couples from adopting to start appearing in states where the level of opposition exceeds 50%. 42. Thus, beyond the obstacles gay men and lesbians face in the traditional legislative
process, ballot initiatives further disadvantage them politically and have undone many of the benefits they have obtained through legislative action. The success of anti-gay ballot initiatives, moreover, makes it less likely that legislatures will enact pro-gay policies in the first place (Lax and Phillips 2009), because elected officials will fear having their actions overturned by angry constituents. Moreover, many gay and lesbian activists fear that the reactive post-initiative policies will be worse than the status quo, thereby forcing them to consider whether foregoing legislative policy change in the first instance is actually in the best interests of the group. For example, several successful anti-marriage ballot initiatives also prohibited civil unions and domestic partnerships, removing benefits that had existed prior to the enactment of the anti-gay ballot initiatives. 43. Ballot initiative campaigns are frequently polarizing, are built on enormous sums
of money, and are waged primarily in the non-deliberative media of mass advertising. Small minorities are even less able to protect their interests in these kinds of contests than they are in the legislative process, whichas a result of legislative districts, institutional rules, coalitional politics, and other factorstends to give smaller minorities more of an opportunity to prevent
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undesirable outcomes. The passage of Proposition 8 in California and Question 1 in Maine both illustrate that coalition politics are more easily broken down in popular vote situations where misleading messages can circumvent community leaders and office holders. 44. Although the use of the initiative process against gay and lesbian policy goals is a
comparatively recent phenomenon, in the past, ballot initiatives were used to undo legislative gains by immigrants, non-English speakers, African Americans, and minorities generally, including overturning fair housing statutes, affirmative action programs, bilingual education, and establishing English as an official language. Historians of the turn-of-the-century progressive movement, when these direct democracy processes were established and written into the laws of the western states, note the association of progressive reforms with anti-immigrant sentiment (among other factors). Indeed, the progressive movement created the initiative process in order to allow the majority to overturn decisions made by legislatures, which allow a greater role for bargaining and coalitional politics. But the initiative process has now been used specifically against gay men and lesbians more than against any other social group. 45. While there has been an increase in state and local jurisdictions with statutory anti-
discrimination protections for gay men and lesbians over the last two decades, these legislative successes have been resisted strongly at the ballot box. Again, in three-fifths of the 50 states, voters have amended their state constitutions to establish formal political and social inequality for gays and lesbians. Similar proposals to amend the federal constitution have also been considered. (3) 46. Underrepresentation in Political Office
Gay elected officials have risen to various offices around the country. These
representatives may strive to advocate for gay and lesbian rights, but their numbers and limited legislative impact on issues concerning those rights continue to demonstrate significant underrepresentation and reliance on friendly, heterosexual representatives, over whom gay men and lesbians hold no direct political power. For example, 85 state legislators nationwide are openly gay, but the total number of state legislators nationwide is 7,382, so those 85 legislators represent only 1.2% of the total. A recent study by the Williams Institute estimated the gay, lesbian and bisexual population of the U.S. to be approximately 3.5%. Under even the most conservative
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estimates of gay and lesbian population share, this number indicates that gays and lesbians are substantially under-represented. Prior to 1990, only four openly gay men or lesbians were members of state legislatures. 47. There have been only seven openly gay members of Congress in history, and
only fourconsiderably less than one percent of all membersserve today (.9% of the House, .75% of the entire Congress). Four of those seven were initially elected to the House with their sexual orientation not publicly known. Only three members were first elected to the House without the benefits of incumbency and with widespread public familiarity with their sexual orientation, Jared Polis (D-CO), Tammy Baldwin (D-WI), and David Cicilline (D-RI). The first two represent districts that are home to the flagship campus of their state universitiesdistricts that are typically more tolerant than others in the state. Gay and lesbian politicians are largely confined to a single political party. Gay Republicans face an extremely difficult time, and the few gay GOP elected officials who have emerged seldom last, most leaving power either through primary challenges or retirement in the face of pressure. There has never been an openly gay President, U.S. Senator, Cabinet level appointee, or Justice of the United States Supreme Court. 48. The percentages of gay and lesbian representation at the local level are lower still.
In 2010, the Gay and Lesbian Leadership Institute identified 288 local elected gay or lesbian political officials serving on city councils, county commissions, school boards, and other local offices (http://www.glli.org/out_officials), which is an insignificant fraction of the total number of elected local officials. Over a decade ago, the Census Bureau reported that the number of elected officials nationwide was slightly over 511,000. Subtracting members of Congress and state legislatures, about whom I just reported, that leaves somewhat over 500,000 city, county, school, and local board officials, and only 288 (or .05%) were identified as openly gay. These officials are also concentrated in the coastal states and in Illinois. Some states have no openlygay elected officials at all, and many more, including Nevada, have just a very small handful. B. 49. Factors Contributing to Political Powerlessness Numerous factors, often working in combination or in mutually reinforcing ways,
contribute to the political powerlessness of gay men and lesbians. Furthermore, many of these
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factorsincluding public and political hostility, prejudice, censorship, and religious and moral condemnationimpose a political disability on gays and lesbians not suffered by groups of comparable size and geographic dispersion. I begin this section with demographic considerations and then discuss other, relational factors pointing to a degree of powerlessness that today is unique to gays and lesbians. (1) 50. Small Population Size and Geographic Dispersion
The simplest way to secure political representation and exercise some degree of
influence over the political process is through numerical strength. The population strength of gay men and lesbians is not close to being sufficient to obtain electoral predominance in a single jurisdiction, let alone change the composition of a legislature or Congress. There are no congressional districts with a majority population of gay and lesbian Americans. There are no municipalities of any size with a majority gay and lesbian population. Even in broadly identified gay-friendly communities, often places where migration to established lesbian and gay communities has significantly increased the gay population above the national average, gays and lesbians fail to reach majority status. A fair estimation of population suggests that gay men and lesbians have sufficient numbers to determine (or substantially influence) the outcome of only a few city council or county board seats, or state legislative districts, nationwide. At any level of aggregation above the precinct or neighborhood, there is no place with a gay majority. (2) 51. Effect of HIV/AIDS Epidemic
The AIDS epidemic has set back the gay communitys potential for political
action, in ways that are both obvious and not obvious. Through 2005, the Centers for Disease Control reported that just over 300,000 MSMs (a CDC term for men who have sex with men) had died of HIV/AIDS. Another 217,000 were living with AIDS. The loss of 300,000 potential voters, organizers, and leaders is a profound setback to a community whose population starts as a fairly small share of the society. Harder to calculate are the lost financial contributions to the political efforts of gay men and lesbians as a consequence of this epidemic. Gay men and lesbians have both raised substantial amounts of money for HIV-related research and social services, diverting resources that could otherwise be used to fight discrimination. Further, gay net
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wealth is negatively impacted by the loss of income on the part of those who have died, and the partial loss of income and expenditures on healthcare from those still living with the disease. Some political observers suggest that a decade or more of gay activism was lost to the cause of gay equality as gay men and lesbians turned their attention to the more immediate threat of the epidemic. While gay men and lesbians do not have the resourcesreliable allies, elected officials, votes, dollars, and organizational capacityto be politically powerful, they have been further disadvantaged by the fact that HIV destroyed such a large segment of the community and consumed such a large portion of its resources. In addition to the direct resource and political costs, AIDS offered heterosexuals a new reason to stigmatize gay people and same-sex relations, and to resist political change that would have advanced gay equality. (3) 52. Violence
A crime can be classified as a hate crime when the victim is targeted because of
his or her identitygenerally race, ethnicity, religious identity, gender, sexual orientation, or disability status. Hate crimes are unique in that the effects of the crime are understoodindeed intendedto reach beyond the person of the actual victim. The crime is best understood as an expression of animus toward an entire group, and is an attempt to intimidate other members of that group or otherwise constrain their future behavior. For example, racially motivated hate crimes against individual target-group-members can simultaneously express racial prejudice toward the individual, an entire group, and intimidate other group members from patronizing businesses, moving to neighborhoods, enrolling in schools, or otherwise exercising their personal liberties. 53. Though broad federal hate crimes protections for gays and lesbians came into
existence only recently, the FBI has collected data on hate crimes committed on the basis of perceived sexual orientation for a number of years, at least from jurisdictions that have chosen to report them, and the numbers are substantial. In the last year for which statistics have been published, 2009, the total number of hate crime incidents was 6,604, and 1,482 (17.8%) of those were on the basis of sexual orientation. In terms of single groups, only African Americans endured more incidents, and since they are roughly three times the population share as gays and
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lesbians, the likelihood that any given gay or lesbian citizen experiences an attack (that is, the per capita number of attacks) is considerably higher. 54. Reported hate crime incidents range from simple assault to murder. According
to the FBIs statistics, in 2008, 73 percent of all hate crimes committed against gays and lesbians included an act of violence; 71 percent of all hate-motivated murders in the United States were of gay men and lesbians; and 55 percent of all hate-motivated rapes were against gays and lesbians. 55. FBI Hate Crimes reports for 2009 show that gay men, along with Jewish
Americans, are the most likely to be victimized by a bias crime. The Southern Poverty Law Center (SPLC ) also suggests that steps forward in the cause of gay and lesbian equality seem to be associated with a subsequent surge in antigay violence, pointing to data immediately in the wake of the Supreme Courts ruling in Lawrence v. Texas, 539 U.S. 558 (2003), in which the Court struck down Texas sodomy law. The intimidation effect of hate crimes serves to undermine the mobilization of gays and lesbians and their allies and to limit their free exercise of simple economic and social liberties. 56. Recent years show no discernible decline in bias crimes against gays and lesbians.
FBI statistics reporting the number of hate crimes against specific groups shows that anti-gay acts were as frequent in 2009 as they were in 2003. (4) 57. Invisibility
A unique aspect of gay and lesbian identity that distinguishes gays and lesbians
from other minority groupsto their political disadvantageis their relative invisibility. The scholarship on passing and self-identification suggests that members of repressed or targeted groups who have the ability to pass unobserved in the majority population may choose to do so if the costs of self-identification, in the form of family disapproval, physical threat, discrimination, and their consequences, can be avoided. While this strategy avoids some risks of identification, passing itself has a personal and a political cost. 58. The unwillingness to identify has several important implications for the question
of whether gay men and lesbians can meaningfully or effectively act on their own behalf
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politically. While not a panacea, social contact with gay men and lesbians is generally associated with more sympathetic policy preferences. Invisibility undermines community support. 59. Mobilization levels among gay men and lesbians is lower than other groups but
is erroneously perceived to be higher. Mobilization can reasonably be understood to be an act of self-identification, so those choosing to pass have foreclosed visible political action. 60. Since not all gay men and lesbians come out, the percentage of the gay and
lesbian population that is mobilized seems higher than it really is. Likewise, since those gay and lesbian citizens who choose to self-identify are those whose economic and social position in society is more securethereby lessening the risks of coming outthe resulting self-selection bias results in a misperception of gays and lesbians as better educated, of higher income, and otherwise privileged. This leads the public to believemistakenlythat gay men and lesbians do not need of certain protections. 61. The public perception that gay men and lesbians are better educated or have
higher incomes is not accurate. Statistically, gays and lesbians do not have higher levels of income and, when all gay men and lesbians are considered rather than only the self-identified, are no better educated then the public at-large. My analysis of the 2004 National Exit Polls demonstrates no difference between heterosexual voters and gay and lesbian voters on income and education. 62. Opponents characterize the efforts of gay men and lesbians to gain statutory
protection as both unjustified and transgressive. Moreover, the public incorrectly perceives that gay men and lesbians are more privileged than they actually are. This misperception both mobilizes opponents and encourages complacency by potential allies. 63. In addition, the fact that sexual orientation is not directly visible may reduce the
groups ability to attract allies. Potential heterosexual allies may reasonably fear being misidentified as gay or lesbian, reducing the chance that they will mobilize on behalf of gays and lesbians. The National Coalition of Anti-Violence Programs reported in 2008 that 9% of hatecrimes reported to their participating agencies on the basis of perceived sexual orientation victimize heterosexuals misidentified as gay or lesbian.
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64.
Finally, invisibility exacerbates the problem of geographic and social dispersion,
making it more difficult for gay men and lesbians to find each other and mobilize politically. (5) 65. Censorship
In a variety of ways, gay men and lesbians are pressured to remain invisible, and in
several contexts, discussion of gay people and their relationships is prohibited or regulated. Examples include the militarys long-standing and only recently repealed Dont Ask, Dont Tell policy; legislation that prevented the National Endowment of the Arts from funding any art depicting homoeroticism; rules that have prohibited federally funded AIDS education materials from promoting homosexuality and requiring educators to advocate for abstinence from extramarital sex, including same-sex couples intimacy; and efforts in several states to forbid the mention of homosexuality in school health classes, or mandate the association of the term with descriptors suggesting that it is not acceptable. This year, Tennessee considered legislation banning the mention or discussion of homosexuality in primary grades, and Missouri has considered a similar bill. And, Arizona, for example, prohibits any mention that same-sex intimacy could be made safe. (6) 66. Public Hostility and Prejudice
Gay men and lesbians face severe hostility from non-gay citizens in many parts of
the country, and opinion data suggest that they are held in considerably lower regard than many groups currently receiving the protection of heightened scrutiny from the courts. Such low public regard makes it difficult for gay people to achieve significant political progress, implicitly justifies legislative and electoral actions against gay men and lesbians, and severely hampers their ability to attract donors, allies, coalition partners, or even public sympathy. 67. In each national election year, the American National Election Study (available at
electionstudies.org or the Inter-university Consortium for Political and Social Research website) asks a representative sample of American citizens to gauge their warmness toward a particular group. Political scientists call this instrument a feeling thermometer and the scale of each ranges from 0 to 100, with 100 indicating strong warmness/fondness/positive views. 68. For Hispanics, approximately 40% of respondents rated their warmness at 50
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(midpoint) or less, and the average temperature was 65.2 (std.dev.21.0). For African Americans, only 33% of respondents were at or below 50, and the mean temperature was 68.76 (std.dev. 20.2). For Catholics, 37% were at or below the mid-point and the mean temperature was 67.3 (std.dev 19.9), and for Jews, 43.9% of respondents were at or below the mid-point and the mean warmth was 65.0 (std.dev.19.3). What is revealing about these summary numbers is their similarity. They do vary, of course, but the percentage below the mid-point all group between 33 and 43.9%, the means of each group is between 65 and 69 degrees on the thermometer, and the standard deviations (a statistical score that calculates how spread apart the responses are around the mean) are between 19 and 20, indicating majority positive perception of each of these groups. 69. By contrast, gay men and lesbians fare far worse. Fully 65.4% of respondents
rated gays at or below the mid-point of 50 and the mean temperature response was 49.4 (std.dev 27.7), indicating that a majority of respondents do not perceive gay men and lesbians positively. Almost two thirds of the respondents rate gays and lesbians at or below the mid-point, which is almost twice that for African Americans and substantially higher than for the other groups. The mean sentiment towards gay men and lesbians is 16 points lower than for Jews and Hispanics, and 19 points lower than for African Americans. The standard deviation is also instructive, since its size (almost half again larger than for the other groups) illustrates the level of polarization in sentiment about gay men and lesbians. /// /// /// /// /// /// /// /// /// ///
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70.
The following chart is illustrative of this point:
71.
The trend in warmness toward gay men and lesbians has been
positive over the last several decades (as it has, in fact, for many groups in society). Notwithstanding that trend, the relative placement of gay men and lesbians vis--vis other outgroups in society suggest that public esteem remains a significant obstacle to political progress. By any estimation, the public is less fond of gay and lesbian Americans than racial and ethnic minorities and religious groups. In fact, the other groups with comparable levels of coolness include Muslims (mean=50.3), atheists (mean=41), and undocumented aliens (mean=39.3). It is revealing that 13.4% of respondents gave gay men and lesbians a score of zero, a percentage exceeded only by scores for undocumented immigrants (15.4%) and atheists (18.6%). (7) 72. Political and Social Hostility
Gay men and lesbians face outspoken denunciation by elected officials in a
manner that would be unthinkable if directed toward almost any other social group. Hostility by
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public officials is often directly mirrored in the population. Furthermore, its public nature, even when articulated by only a small segment of office-holders and officials, serves as a signal to the broader population that these discriminatory attitudes are acceptable or reasonable within the bounds of mainstream political discourse. 73. Gay men and lesbians have been described by a sitting U.S. Senator as the
greatest threat to our freedom that we face today. Another sitting senator, during his successful campaign, openly called for gay men and lesbians to be banned from the classroom, a claim he repeated last year at a public rally. A third senator compared same-sex marriage to marrying a box turtle. He was subsequently reelected with a large margin. Same-sex intimacy has been described by a sitting senator as morally equivalent to incest and bestiality. In 2010, the GOP nominee for governor of New York responded to a question about marriage equality for same-sex couples by saying that we should stop pandering to pornographers and perverts. The social and political disadvantage that flows from these very public and derisive comments is palpable. 74. While there may be pockets of tolerance here or there at the state and local levels,
and occasionally successful gay or lesbian candidates, in large swaths of the nation, political condemnations of gay men and lesbians are not electorally costly and may even be used to gain electoral support. It is difficult to identify many cases where an elected official was so damaged by holding anti-gay positions that he or she lost public office on this basis, but there are countless cases across the country where candidates felt advantaged by taking a particularly harsh anti-gay viewpoint. In part, this is a consequence of the partisan and geographic distribution of views and the nature of our legislative representation regime, but in part this is also a reflection of the fact that pro-gay policies are a very low priority even among allies in the population who hold generally positive views. Public contempt extends beyond elected officials to prominent national religious leaders, who command the attention of political leaders as well as significant numbers of the electorate. (8) 75. Unreliable Allies
The structure of the American party system is such that the path to pro-LGBT
equality policy change lies almost exclusively through the actions of one party. The increasing
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power of evangelical Christians and self-styled Tea Party advocates in the GOP has shifted this partys social policy further to the right and all but eliminated its once sizable tradition of libertarianism. Many within the Republican Party in office (and the national Republican platform) are openly hostile to gay and lesbian rights. The nearly complete disinterest of one party severely disadvantages gay men and lesbians, since gay men and lesbians can thus be understood as captured by the Democratic Party, that is, unlikely to bolt from the party or abstain from voting for it in large numbers. Under these circumstances, the capturing party can take the political support of the group for granted. 76. Although the Democratic Party is more supportive in its rhetoric, and the
Democratic platform speaks favorably regarding equality for lesbians and gay men, Democrats have repeatedly shrunk from any extension of rights to gay men and lesbians at the federal level. Democrats controlled the White House from 1993 to 2001, and the Congress until 1994 and from 2006 to 2010. Nevertheless, nondiscrimination statutes and federal recognition of statesanctioned marriages between same-sex couples remain undelivered. Again, Dont Ask, Dont Tell was passed in a Democratically controlled Congress, and both it and the federal Defense of Marriage Act were signed into law by a Democratic president. 77. This is not to say that gay men and lesbians have no allies at all. In recent months,
the governors of New York, Maryland and Washington signed marriage equality bills into law. In the case of Washington State, the governor was not seeking reelection, but both other governors have future political aspirations. Their assistance weighs positively on my assessment of political resources of gays and lesbians. Their support, however, must be weighed against the vast majority of state governors, however, who offer no such supportcostly or cost-freeor offer direct opposition to the political and social aspirations of gays and lesbians. 78. Gay men and lesbians are disadvantaged by the circumstance of party capture.
The almost complete indifference or hostility of Republican elected officials to the political interest of gay men and lesbians largely confines their political opportunities for support and public office to a single party, the Democrats. Democratic leaders, mindful of this complete exclusion, are thus free to neglect and even occasionally set back gay and lesbian interests, secure
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in the knowledge that the other party does not represent a credible threat for peeling away voters. Gay men and lesbians may be disenchanted with the quality and intensity of representation they appear to receive from Democratic office-holders but, in a practical sense, have no alternative. Taken together, Republican hostility and Democratic capture significantly weaken the political voice of lesbians and gay men. (9) 79. Moral and Political Condemnation
While the pluralist framework envisions shifting majorities and rotation in office,
perceived Old Testament prohibitions of homosexuality serve to create, in many of Americas religious communities, a permanent majority that believes same-sex intimacy is sinful and immoral, and that it should be condemned and discouraged. The General Social Survey (http://www.norc.org/GSS+Website/) regularly asks a representative sample of Americans to evaluate whether homosexual relations are wrong. In 2008, those data show that 51.5% of Americans still report that sex between two persons of the same sex is always wrong, while another 10.3% agree that it is sometimes or almost always wrong. Moreover, the shift in the direction of tolerance is neither large nor rapid. A decade ago, a module from the same survey showed comparable numbers, at 56% and 11.8% respectively. (10) 80. Powerful, Numerous, and Well-Funded Opposition
The moral condemnation of homosexual acts fuels and supports political
opposition to protections and benefits for gays and lesbians. Campbell and Robinson (2007) found that opposition to marriages between same-sex couples united leadership and core believers across religious traditions. Similarly, the San Francisco Chronicle reported that the campaign in favor of Proposition 8 was conceived and funded by a cooperative effort of the Roman Catholic Archbishop of San Francisco and the senior leadership of the Mormon Church. These reports were supported by documentary evidence and testimony introduced in the Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), trial in the Northern District of California, in particular evidence of interstate coordination and fundraising within and between global religious organizations. The biennial campaigns to pass Nevadas constitutional amendment prohibiting marriage for same-sex couples also received significant support from a
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number of churches, including the Mormon Church, which used its infrastructure to organize voters and solicit campaign donations from church members. Churches provide a well-funded, widely spread, untaxed medium in which individuals opposed to gay and lesbian policy goals can disseminate political messages and campaign materials, as well as engage in fundraising. Moreover, national religious organizations like Focus on the Family, the Traditional Values Coalition, the Family Research Council, the National Organization for Marriage and other groups provide a national network for pressuring elected officials, fundraising, message testing, media dissemination and publication, mobilization, and coordination across states and jurisdictions. This nationwide coordination, for example, explains how 13 statewide initiatives concerning marriage for people in same-sex relationships appeared in a single year, 2004. Similarly, the coordination of campaigns from California to Maine illustrates the national nature of these efforts. Cahill (2007) documents the vast economic resources of these organizations and their willingness to provide them to political efforts to prevent or reverse rights, benefits, or protections for gay men and lesbians. Gay men and lesbians lack the political resourcesincluding voting numbers, cash, elected officials from the group, reliable allies, reach, or a favorable political opportunity structureto counter this kind of committed, organized opposition to their interests. 81. When scientific and learned societies have concluded that there is no evidentiary
or scientific bases to justify anti-gay biases or policieswhether with respect to same-sex relationships or in evaluating gay men and lesbians as parents, as healthy, productive members of society, and so forthforces opposed to their political and social incorporation have formed splinter or shadow organizations designed to give the appearance of scientific approval to positions without broad scientific and professional support. For example, the American Psychological Association long ago removed homosexuality from their diagnostic manual as a psychologically disordered behavior, as the consensus in psychological research is that there is little or no psycho-pathology associated with homosexual identity. Nevertheless, anti-gay forces have founded the National Association of Research and Therapy for Homosexuality (NARTH), which promotes efforts to change sexual orientation even though virtually all major mental health professional organizations have adopted policy statements warning professionals and the public
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about these treatments. Likewise, the American Academy of Pediatrics has been publicly supportive of gay and lesbian parenting, and states on their website that A growing body of scientific literature reveals that children who grow up with one or two gay and/or lesbian parents will develop emotionally, cognitively, socially, and sexually as well as children whose parents are heterosexual. In response, anti-gay activists have established the American College of Pediatricians which, despite their name, is actually an anti-gay organization with a fraction of the Academys membership and no scientific or professional standing. These non-mainstream organizations, with names designed to evoke a false sense of scientific authority, exist principally to discredit the scientific consensus regarding gay people, unquestionably weakening their political power. V. Comparative Political Powerlessness 82. Gays and lesbians suffer an extreme degree of political vulnerability and
powerlessness compared to most other groups in society. Even groups that have obtained the protection of heightened scrutiny from the Supreme Court possessed greater political power at the time those decisions were handed down than gays and lesbians do today. A. 83. Gender When the Supreme Court held that sex was a quasi-suspect classification in the
1970s, they were in a far superior political position compared to that held by lesbians and gays today. Women are and were a majority of the population and, if they so choose, could theoretically determine most political outcomes. While women do not have the same level of political cohesion as many other groups, so that in many cases their majority status has not proved decisive, the magnitude of their numbers is a source of potential power that politicians cannot ignore. And in fact, by the time of the recognition of sex as a quasi-suspect classification by the Court, women had achieved important victories in the political process, including the 1963 Equal Pay Act, coverage in the 1964 Civil Rights Act and its subsequent amendments, and specific statutory and constitutional protection in several states. 84. Women have a number of other characteristics that enhanced their ability to
organize and act politically when compared with gays and lesbians. While sexism certainly
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existed (and still exists), and political activism could be costly, identity as a woman was not socially controversial, did not attract familial scorn, and did not bar one from such a large range of social institutions, though some institutions were exclusively male. Women could freely identify one another, gather, coordinate, and act largely free of fear of repressive tactics. Both political parties sought the support of women. B. 85. Race Immediately in the wake of the Civil War, three amendments to the federal
constitution established de jure legal equality for African-Americans and officially barred states from violating equal protection. Though this guarantee of equality had seldom been meaningfully enforced, it was nonetheless a de jure status superior to that now held by lesbians and gay men. In addition, as early as 1941, President Roosevelt issued Executive Order 8802 prohibiting race discrimination in contracting and employment in companies doing business with the U.S. In April of this year, President Obama declined to sign an executive order barring sexual orientation discrimination among federal contractors. Through court action and the social movement of the 1950s and 1960s, African Americans (and later Latinos) achieved a rollback of Jim Crow segregation laws and established a statutory regime of equality in employment, education, and housing. Again, this was more promise than practice, but it was a statutory circumstance superior to that of lesbians and gay men today. 86. In the 1940s and 1950s, African Americans and other racial and ethnic minorities
had similar disadvantages to gays in terms of resources and social sanction, but with far greater numbers (and in some instances majorities), they have been able to claim a more meaningful share of political representation and policy responsiveness. Even before the passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965, there were 5 black members of Congress and over 100 elected officials nationwide. Today, 73 people of color serve in the House of Representatives. African Americans, Latinos, and Asian Americans have been elected governors and big city mayors. They form outright majorities in dozens of jurisdictions and approximately 60 House districts through the last census. Rather than serve as an impediment, most (though admittedly not all) religious institutions express support for the principle of racial equality and the
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church in minority communities, rather than serving as an impediment to political progress, is a locus for identification and mobilization.
Signed under penalty of perjury under the laws of the United States this 5th day of September, 2012.
__________________________________ Gary M. Segura, Ph.D.
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Exhibit A
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Curriculum Vitae Gary Michael Segura

Department of Political Science, Stanford University 100 Encina Hall West Stanford, CA 94305-6044 650-723-3583 E-mail: segura@stanford.edu
EDUCATIONAL AND PROFESSIONAL HISTORY

Education: 1985-1986 & 1988-1992 University of Illinois at Urbana-Champaign Ph.D., Department of Political Science, 1992. A.M., Department of Political Science, 1989. Loyola University of the South, New Orleans, LA B.A., Magna Cum Laude, Presidential Scholar Department of Political Science, 1985.
1/8/12
1981-1985
Academic Experience: 2008-present Professor, Department of Political Science, and Chair of Chicana/o Studies, Center for Comparative Studies in Race and Ethnicity, Stanford University Professor, Department of Political Science, and since 2006, Director, University of Washington Institute for the Study of Ethnicity, Race and Sexuality, University of Washington. Associate Professor, Department of Political Science, University of Washington. Associate Professor, Department of Political Science, University of Iowa. Associate Professor, School Politics and Economics, Claremont Graduate University. Assistant Professor, School Politics and Economics, Claremont Graduate University. Assistant Professor, Department of Political Science, University of California, Davis. Acting Assistant Professor, Department of Political Science, University of California, Davis.
2007-2008
2005-2007 2001-2005 1999-2001 1996-1999 1992-1996 1991-1992

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SCHOLARSHIP
Publications Books: Latinos in the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences. 2012. Cambridge: Cambridge University Press. With Luis Fraga, John Garcia, Rodney Hero, Michael JonesCorrea and Valerie Martinez-Ebers. "The Future is Ours:" Minority Politics, Political Behavior, and the Multiracial Era of American Politics. 2011. Washington, DC: Congressional Quarterly Press. With Shaun Bowler. Latino Lives in America: Making It Home. 2010. Philadelphia: Temple University Press. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez-Ebers. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. Edited with Shaun Bowler. Refereed Articles: Latino Public Opinion and Realigning the American Electorate. 2012. Ddalus. Forthcoming. Whos the Party of the Working Class? Economic Populism and the Publics Beliefs about American Political Parties. Forthcoming, June, 2012. Political Behavior. With Stephen P. Nicholson. Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation. 2011. Political Research Quarterly, 64, (1): 172-184. With Wayne Santoro. Hope, Tropes, and Dopes: Hispanic and White Racial Animus in the 2008 Election. 2010. Presidential Studies Quarterly, 40 (3): 497- 514. With Ali Valenzuela. Should They Dance with the One Who Brung Em? Latinos and the 2008 Presidential Election. 2008. PS: Political Science and Politics, 41 (4):753-760. With Matt A. Barreto, Luis R. Fraga, Sylvia Manzano, and Valerie Martinez-Ebers. Race and the Recall: Racial Polarization in the California Recall Election. 2008. With Luis R. Fraga. American Journal of Political Science 52 (2): 421-435.

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Commentary on Citizens by Choice Voters by Necessity: Long Term Patterns in Political Mobilization by Naturalized Latino Voters. With Adrian D. Pantoja and Ricardo Ramirez. 2008. Political Research Quarterly, 61 (1): 50-52 All Politics are Still Local: the Iraq War and the 2006 Midterm Election. 2008. With Scott S. Gartner. PS: Political Science and Politics, 41(1): 95-100. What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003. 2006. With Christina Bejarano, graduate student. Political Research Quarterly, 60(2): 328337. Su Casa Es Nuestra Casa: Latino Politics Research and the Development of American Political Science. American Political Science Review, 100(4): 515-522. 2006. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez-Ebers. Comparative Ethnic Politics in the United States: Beyond Black and White. Annual Review of Political Science, 9: 375-395. 2006. With Helena Alves Rodrigues. Immigration and National Identity: An Introduction to a Symposium on Immigration and National Identity. Perspectives on Politics, 4(2): 277-278. 2006. Culture Clash? Contesting Notions of American Identity and the Effects of Latin American Immigration. Perspectives on Politics, 4(2): 279-287. 2006. With Luis Fraga. Explaining the Latino Vote: Issue Voting among Latinos in the 2000 Presidential Election. Political Research Quarterly, 59(2): 259-271. 2006. With Stephen P. Nicholson and Adrian D. Pantoja. Earthquakes and Aftershocks: Tracking Partisan Identification amid California's Changing Political Environment. American Journal of Political Science, 50(1): 146-159. 2006. With Stephen P. Nicholson and Shaun Bowler. A Symposium on the Politics of Same-Sex Marriage: An Introduction and Commentary. PS: Political Science and Politics, 38 (2). April 2005. Served as Symposium Editor. Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is Environmentalism Still a White Phenomenon? Political Research Quarterly 58(3):435-448. 2005. With Matthew Whittaker (graduate student) and Shaun Bowler. War and the Fate of Legislators: War Casualties, Policy Positions, and U.S. Senate Elections During Vietnam. Political Research Quarterly, 53 (3):467-477. 2004. With Scott S. Gartner and Bethany A. Barratt. The Mobilizing Effect of Majority-Minority Districts on Latino Turnout. American Political Science Review, 98(1): 65-76. 2004. With Matt Barreto and Nathan D. Woods. Fear and Loathing in California: Contextual Threat and Political Sophistication Among Latino Voters. Political Behavior, 25 (3): 265-286. 2003. With Adrian D. Pantoja.

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Does Ethnicity Matter? Descriptive Representation in the Statehouse and Political Alienation Among Latinos. Social Science Quarterly, 84(2): 441-460. 2003. With Adrian D. Pantoja. The Paradox of Presidential Approval: The Mixed Blessing of Divided Government to Presidential Popularity. Journal of Politics, 64 (3): 701-720. 2002. With Stephen P. Nicholson and Nathan D. Woods, graduate student. Citizens by Choice, Voters by Necessity: Patterns in Political Mobilization by Naturalized Latinos. Political Research Quarterly, 54 (4): 729-750. 2001. With Adrian D. Pantoja and Ricardo Ramirez. Race, Casualties and Opinion in the Vietnam War. Journal of Politics, 62 (1): 115-146. 2000. With Scott S. Gartner. Midterm Elections and Divided Government: An Information-Driven Theory of Electoral Volatility. Political Research Quarterly, 52 (3): 609-630. 1999. With Stephen P. Nicholson. War, Casualties, and Public Opinion. Journal of Conflict Resolution, 42: 278-300, 1998. With Scott S. Gartner. Dynamics of Latino Partisanship in California: Immigration, Issue Salience, and Their Implications. Harvard Journal of Hispanic Politics, 10: 62-80, 1997. With Dennis Falcon, graduate student, and Harry Pachon. All Politics are Local: The Effects of Local Losses on Individual Attitudes Towards War. Journal of Conflict Resolution, 41: 669-694, 1997. With Scott S. Gartner and Michael Wilkening, graduate student. Appearances Can Be Deceptive: Self-Selection, Social Group Identification, and Political Mobilization. Rationality and Society, 9 (2): 131-161, 1997. With Scott S. Gartner. Cross National Variation in Political Sophistication of Individuals: Capability or Choice? Journal of Politics, 59 (1): 126-147, 1997. With Stacy B. Gordon, graduate student. Sequential Choices and Partisan Transitions in U.S. Senate Delegations: 1972-1988. Journal of Politics, 57(1):86-100, 1995. With Stephen P. Nicholson, graduate student. Endogeneity, Exogeneity, Time, and Space in Political Representation. Legislative Studies Quarterly, 20(1): 3-22, 1995. With James H. Kuklinski. Book Chapters and Invited Articles: The Browning of America. Democracy Journal, June 2012. Restarting History. In Grusky, David et al., editors, Occupy the Future. Cambridge MA: MIT Press. 2012.

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Latino Electoral Participation. With Jeanette Carmen Bustamante. For the Encyclopedia of Latinos and Latinas in the United States, 2nd Edition, Oxford University Press. 2012. The Efficacy and Alienation of Juan Q. Public: The Immigration Marches and Orientations Toward American Political Institutions. In Bloemraad, Irene and Kim Voss, (eds.), Rallying for Immigrant Rights. Berkeley: University of California Press, 2011. With Francisco Pedraza and Shaun Bowler. The Immigration Aftermath: Latinos, Latino Immigrants, and American National Identity. Forthcoming in David Coates and Peter Siavelis (eds), Getting Immigration Right: What Every American Needs to Know. 2009. Dulles VA: Potomac Books. With Luis R. Fraga. Hearing Footsteps: Latino Population Growth and Anticipatedbut not Quite PresentPolitical Effects in Emerging Communities. In de la Garza, Rodolfo O., Louis DeSipio, and David L. Leal (eds.). Beyond the Barrio: Latinos in the 2004 Elections. 2008. South Bend, IN: University of Notre Dame Press. With Christina Bejarano. An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts. In Levi, Margaret, Jack Knight, James Johnson, and Susan Stokes, eds. Designing Democratic Government. 2008. New York: Russell Sage Foundation. With David I. Lublin. Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects. In Henderson, Ana, Voting Rights Act Reauthorization of 2006: Perspectives on Democracy, Participation, and Power. 2007. Berkeley: Institute for Governmental Studies Public Policy Press. With Nathan D. Woods. A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics. In Meier, Kenneth, Rodolfo Espino, and David Leal, eds., Latino Politics: Identity, Mobilization, and Representation. 2007. Charlottesville: University of Virginia Press. With Helena A. Rodrigues. Latino Political Participation. With Helena A. Rodrigues. For the Encyclopedia of Latinos and Latinas in the United States, Oxford University Press. 2005. Social, Political and Institutional Context and the Representation of Minority Americans. In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Shaun Bowler. Agenda Change and the Politics of Latino Partisan Identification. In Segura, Gary M. and Shaun Bowler, eds. Diversity In Democracy: Minority Representation in the United States. 2005. Charlottesville: University of Virginia Press. With Stephen P. Nicholson. Unquestioned Influence: Latinos and the 2000 Election in California. In Rodolfo de la Garza and Louis Desipio, eds., Muted Voices: Latino Politics in the 2000 Election, New York: Rowman and Littlefield. 2004. With Luis Fraga and Ricardo Ramirez. Targets of Opportunity: California's Blanket Primary and the Political Representation of Latinos. In Cain, Bruce E. and Elisabeth R. Gerber, eds., Voting at the Political Fault Line: California's 5 App. 000288 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Experiment with the Blanket Primary, 248-269. 2002. Berkeley: University of California Press. With Nathan D. Woods, graduate student. Hispanics, Social Capital and Civic Engagement. National Civic Review 90 (1): 85-96. 2001. With Harry Pachon and Nathan D. Woods, graduate student. Institutions Matter: Local Electoral Laws, Gay and Lesbian Representation, and Coalition Building Across Minority Communities. In Ellen Riggle and Barry Tadlock, eds., Gays and Lesbians in the Democratic Process, 220-241. 1999. New York: Columbia University Press Book Review: Review. Who Are We? By Samuel Huntington. Perspectives on Politics, 3(3): 640-642. Review. Congress and the Rent Seeking Society, by Glenn Parker, Journal of Politics, 59: 591-593, 1997. Other Publications: An Update on the Status of Latinos y Latinas in Political Science: What the Profession Should be Doing. PS: Political Science and Politics, XXXIII (4): 899-903, December, 2000. With Valerie Martinez-Ebers, Manuel Avalos, Carol Hardy-Fanta, Linda Lopez, and Ronald Schmidt, Sr. Under Review: Behavioral and Attitudinal Components of Immigrant Political Incorporation. Democratic Accountability, the Separation of Powers, and Government Approval: How Party Government Shapes Approval of American National Institutions. With Stephen P. Nicholson. Race Matters: Latino Racial Identities and Political Beliefs. With Stephen P. Nicholson and Adrian Pantoja. Awards: 2010 2007 2005 2004 Elected Fellow, American Academy of Arts and Sciences Midwest Latino Caucus Best Paper Award for the Best Paper Presented at the Annual Meeting, Midwest Political Science Association Adaljiza Sosa-Riddell Award for Exemplary Mentoring of Latino/a Faculty, American Political Science Association, Committee on the Status of Latinos y Latinas. Charles Redd Award for Best Paper on the Politics of the American West presented at the 2003 Annual Meeting, Western Political Science Association. 6 App. 000289 - Pls.' SJ Opp'n, Kitchen v. Herbert
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External Grants and Fellowships: 2009 National Science Foundation. American National Election Studies, 2009-2013. $10,000,000 with Simon Jackman and Vincent Hutchings (Jointly with the University of Michigan). National Science Foundation. Spanish Translation and Hispanic Over-sample: American National Election Study. $722,657 with Matt A. Barreto. National Science Foundation. Supplemental Grant: Contextual Variation and Latino Political Life. $33,754. Latino Policy Coalition. Understanding Latino Policy Challenges in 21st Century America. $40,000 with Matt A. Barreto. National Science Foundation. Contextual Variation in Latino Political Life. $173,600, With Michael Jones-Correa, on behalf of the Latino National Survey team. Divided between University of Washington and Cornell University.
2007 2006 2006 2005
2002-2005 Private Foundation Grants for the Latino National Survey. The Latino National Survey is a collaborative project with Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. The project combines a 40-minute survey of 8600 Latino residents of the United States with an extensive array of contextual and demographic data on place of residence. 2005 2005 2004 2004 2004 2004 2003 2002 2002 Wm. K. Kellogg Foundation. Latino National Survey. $100,000 Carnegie Corporation. Latino Incorporation in a Changing America: The Latino National Survey. $100,000. Joyce Foundation. Latino Survey in Illinois and Iowa. $100,000. Russell Sage Foundation. Latinos Immigrants in New Receiving Areas. $150,000. Irvine Foundation. Latinos in California Survey. $150,000. Ford Foundation. Latino National Survey. $200,000. Ford Foundation. Public Policy Advocate Outreach for the Latino National Survey. $30,000. William and Flora Hewlett Foundation. Latino National Survey Planning Grant. $125,000. Annie E. Casey Foundation. Latino National Survey Working Group, under the auspices of the Inter-University Program in Latino Research. $20,000.

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2000
National Science Foundation, SES-0079056. The Demographics of Pandoras Box: An Empirical Investigation of the Determinants of Who Dies in War. With Scott S. Gartner. Total Grant, $215,750, divided between the two institutions. Haynes Foundation Faculty Fellowship. The Blanket Primary and Latino Influence in Californias Republican Party. $10,000 Haynes Foundation Faculty Fellowship. Demography, Representation, and Institutions in Southern California Governments. $8000 Public Policy Institute of California. Latino Representation and Local Electoral Laws in California. $25,000 Pew Charitable Trusts. Social Capital, Civic Engagement and Political Participation in Latino Neighborhoods. With Rodolfo de la Garza and Harry Pachon. $165,000. National Science Foundation, SBR-9511527. Casualties of War and Politics: American Electoral Politics and the Korean and VietnamWars. With Scott S. Gartner. $72,000. National Hispanic Scholar Fellowship National Hispanic Scholar Fellowship Harry S. Truman Foundation Fellowship
2000 1999 1997 1996 1995 1989 1988 1983
Recent Internal Grants and Fellowships: 2005 University of Washingtons Presidents Diversity Appraisal Implementation Fund. Grant to establish the Washington Institute for the Study of Ethnicity and Race, on behalf of the Department of Political Science. March. Obermann Summer Interdisciplinary Research Grant. Assimilation and Political Incorporation: An Examination of Mexicans, Puerto Ricans, and Cuban Americans. With Wayne Santoro, Assistant Professor of Sociology, UI, Summer. UI Faculty Scholar Award. Obermann Interdisciplinary Research Semester, Sex, Politics and Economics. Fall. UI Career Development Award, awarded for Spring, 2003. Undergraduate Instructional Improvement Grant, Politics and Homosexuality.
2003
2002 2002 2002 1994

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Conference Presentations (10 years): Partisan Deviation, Economic Self-Interest, and the Behavior of High Income Voters. With Shaun Bowler. Presented at the Annual Meeting of the American Political Science Association, Seattle, WA, September 1-4, 2011. What They Think Depends on Who You Ask: Methodological Errors in Survey Estimates of Latino Two-Party Vote. With Matt A. Barreto. Presented at the Annual Meeting of the American Political Science Association, Seattle, WA, September 1-4, 2011. Minority Political Orientations, Policy Opinions, and American Values. With Shaun Bowler. Presented at the Annual Meeting of the Western Political Science Association, San Antonio, TX, April 21-23, 2011. Race Matters: Racial Identity and Party Identification among Latinos. With Stephen P. Nicholson and Adrian Pantoja. Presented at the Annual Meeting of the Western Political Science Association, San Antonio. TX, April 21-23, 2011. The Problem with Palo Alto: Partisan Deviation, Economic Self-Interest, and the Behavior of High Income Voters. With Shaun Bowler. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, March 31-April 3, 2011. In-Group Identification and Out-Group Attitudes: Latinidad and Relations with Whites and African Americans. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 6-8, 2011. Race and the Obama Presidency. With Matt A. Barreto and Ali Valenzuela. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, September 1-5, 2010. Everything Jim Crow is New Again: Arizona, Racial Construction, and the Political Ramifications of Immigrant-Bashing for Short-Term Political Gain. Presented at the Workshop on Inequality, United States Study Centre at the University of Sydney, Australia, June 2010. Gender Attitudes, Race Differences and Gay Rights: Is Race Really a Key Predictor of Attitudes Towards Homosexuals. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago IL, April 21-25, 2010. Do NES Models of Voting Apply to Blacks and Latinos? Results from the 2008 NES Oversamples. Presented at the Annual Meeting of the Western Political Science Association, San Francisco, CA, March 30-April 3, 2010. With Matt A. Barreto. Latino Identification in the American Polity: Characteristics and Consequences of Multiple Political Selves. Presented at the National Conference on Latino Politics, Power, and Policy: Findings from the Latino National Survey. Brown University, Providence, RI, October 24, 2009. The Black-Brown Divide that Wasnt: Comparing Latino, Black, and White Voters in the 2008 Election. With Matt A. Barreto. Presented at the Mershon Center, Ohio State Conference 9 App. 000292 - Pls.' SJ Opp'n, Kitchen v. Herbert
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on the 2008 Election, Columbus, OH, October 2-3, 2009. Identity Research in Latino Politics. Presented as part of the APSA Short Course on Latino Politcs at the Annual Meeting of the American Political Science Association, Toronto, ON, September 2-6, 2009. Whos the Party of the Working Class? Economic Populism and the Publics Beliefs about American Political Parties. With Stephen P. Nicholson. Presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 28-31, 2008. Revisiting the Politics of Economic Populism: Class, Faith, and Party Images in the United States. With Stephen P. Nicholson. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 3-6, 2008. Evaluating a Cost-Driven Theory of Wartime Public Opinion. With Scott S. Gartner. Presented at the Annual Meeting of the Western Political Science Association, San Diego, CA, March 20-22, 2008. Calculated Support: Hawks, Doves, Evaluators, and the War in Iraq. With Scott S. Gartner. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, Aug 30-Sep. 2, 2007. Transnational Linkages, Generational Change, and Latino Political Engagement. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 12-15, 2007. Winner of the Midwest Latino Caucus Best Paper Award for the Best Paper on Latino Politics presented at the Annual Meeting. The Efficacy and Trust of Juan Q. Public: How the Immigration Marches Reflect Surprising Support for American Institutions of Governance. With Shaun Bowler and Francisco Pedraza. Presented at the Annual Meeting of the Western Political Science Association, Las Vegas, NV, March 8-10, 2007. LATINO NATIONAL SURVEY: Rollout Presentation: Coming to Grips with Latino Identity. Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA, Aug 31- Sep 3, 2006. Majority-Minority Districts, Co-ethnic Candidates, and Mobilization Effects. With Nathan D. Woods. Presented at the University of California, Berkeley, Warren Institute on Civil Rights, Conference, February 9, 2006, Washington, DC. Divided Government and Public Attitudes Towards Institutions. With Stephen P. Nicholson. Paper presented at the Annual Meeting of the Southern Political Science Association, Atlanta, GA, January 5-7, 2006. An Evaluation of the Electoral and Behavioral Impacts of Majority-Minority Districts. With David I. Lublin. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005.

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Race Matters: Latino Racial Identities and Political Beliefs. With Stephen P. Nicholson and Adrian Pantoja. Presented at the Annual Meeting of the American Political Science Association, Washington, DC, August 31-September 4, 2005. Approval of Governmental Institutions and Party Government. With Stephen P. Nicholson. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005. From Radical to Conservative: Civil Unions, Same-sex Marriage, and the Structure of Public Attitudes. With Ken Cimino. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 7-10, 2005. A General Theory of War Casualties and Public Opinion. With Scott S. Gartner. Presented at the Annual Meeting of the Western Political Science Association, Oakland, CA, March 16-19, 2005. Hearing Footsteps: Latino Population Growth and Anticipatedbut not Quite PresentPolitical Effects in Emerging Communities. With Christina Bejarano, graduate student. Presented at the University of Texas conference on Latinos in the 2004 Election, February 11-12, 2005. What Goes Around, Comes Around: Race, Blowback, and the Louisiana Elections of 2002 and 2003. With Christina Bejarano, graduate student. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 6-8, 2005. Democratic Accountability, the Separation of Powers, and Divided Government: Explaining Presidential and Congressional Approval. With Stephen P. Nicholson. Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA, January 68, 2005. Race and the Recall: The Role of Race in the California Recall Election. With Luis R. Fraga. Presented at the Annual Meeting of the American Political Science Association, Chicago, IL, September 1-5, 2004. A Place at the Lunch Counter: Latinos, African-Americans, and the Dynamics of American Race Politics. With Helena A. Rodrigues. Presented at the conference Latino Politics: The State of the Discipline, Texas A&M University, College Station, TX, April 30-May1, 2004. Assimilation, Incorporation, and Ethnic Identity in Understanding Latino Electoral and NonElectoral Political Participation. With Wayne Santoro. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004 . Partisan Gerrymandering and Its Influence on Voter Turnout. With Matt Barreto and Nathan D, Woods. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 15-18, 2004. A New Generation of Latino Voices: Identity, Attitudes, and Participation. With Luis Fraga, John Garcia, Rodney Hero, Michael Jones-Correa and Valerie Martinez. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004. 11 App. 000294 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Earthquakes and Aftershocks: Tracking the Macro-partisan Implications of California's Recent Political Environment. With Stephen P. Nicholson and Shaun Bowler. Presented at the Annual Meeting of the Western Political Science Association, Portland, OR, March 11-14, 2004. Environmental Racism and the Action Gap: Assessing White and Minority Commitment to Environmental Causes. With Shaun Bowler and Matthew Whittaker. Presented at the Annual Meeting of the Southern Political Science Association, January 8-10, 2004. Perceptions of Commonality and Shared Interests: Assessing Latino Support for Black-Brown Coalitions. With Helena Alves Rodrigues. Presented at the Color Lines Conference, Harvard Civil Rights Project, Harvard University, Cambridge, MA, August 31-Sep. 2, 2003. Attitudinal Underpinnings of Black-Brown Coalitions: Latino Perceptions of Commonality With African-Americans and Anglos, with Helena Rodrigues. Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 3-6, 2003. Racial/Ethnic Group Attitudes Toward Environmental Protection in California: Is Environmentalism Still a White Phenomenon? With Matthew Whittaker and Shaun Bowler, presented at the Annual Meeting of the Western Political Science Association, Denver, CO, March 27-30, 2003. Winner of the 2003 Charles Redd Award for Best Paper on the Politics of the American West, Western Political Science Association, March 2004. Ich bin ein Latino! Sophistication, Symbolism, Heuristics, and Latino Preferences in the 2000 Presidential Election, with Stephen P. Nicholson and Adrian D. Pantoja, presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 September 1, 2002. Looking GoodFeeling Good! Assessing Whether Dyadic and Collective Descriptive Representation Enhances Latino Efficacy, with Stacy Burnett Gordon, prepared for presentation at the Annual Meeting of the American Political Science Association, Boston, MA, August 29 September 1, 2002. Descriptive Representation and Political Alienation Among Latino Citizens with Adrian D. Pantoja, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002. Rest Assured? Estimating the Potential Demobilization Effects of Overlapping Majority-Minority Districts, with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Midwest Political Science Association, Chicago, IL, April 25-27, 2002. Estimating and Understanding Social Capital and its Political Effects Among Latinos in the United States, with F. Chris Garcia and Harry Pachon, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002. A Quasi-experimental Estimation of the Effects of Overlapping Majority-Minority Districts on Turnout, with Matt Barreto and Nathan D. Woods, presented at the Annual Meeting of the Western Political Science Association, Long Beach, CA, March 22-24, 2002. 12 App. 000295 - Pls.' SJ Opp'n, Kitchen v. Herbert
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TEACHING ACTIVITIES
Graduate Courses Taught Seminar in Political Behavior Seminar in Congress Seminar in Interest Groups Quantitative Methods I Core Seminar in American Politics Undergraduate Courses Taught Elections and Voting Behavior Legislative Process Societal Responses to AIDS Quantitative Analysis Latino Politics Understanding Political Research Inequality and American Democracy Doctoral Students Supervised (Chair) Christina Bejarano, Assistant Professor, Department of Political Science, University of Kansas, 2007. Ken Cimino, Deceased, 2004. Stacy B. Gordon, Associate Professor, Department of Political Science, University of Nevada, 1997. Daryl Liskey, Senior Computational Social Scientist, Booz Allen Hamilton Corporation (Strategy and Technology Consulting), 2002. Stephen P. Nicholson, Assistant Professor, School of Social and Behavioral Sciences, University of California, Merced, 1998. Recipient of the APSAs E.E. Schattschneider Award for the Best Dissertation in American Politics, 1999. Adrian D. Pantoja, Associate Professor, Department of Politics, Pitzer College, 2001. Francisco Pedraza, Assistant Professor, Department of Political Science, Texas A&M University 2010. Helena Rodrigues, Direct, Project ADVANCE, University of Arizona, 2005. Roger P. Rose, Associate Professor, Department of Political Science, University of Minnesota, Morris, 1997. (Co-directed)
Research Design in Political Science Seminar on Representation & Electoral Systems Nature of Political Science Inquiry Seminar on Racial, Ethnic, and Social Minorities Seminar on Race and Racism in Contemporary American Politics Introduction to American Politics Introduction to Political Philosophy Politics and Homosexuality Minority Representation and the VRA Minority and Group Mobilization Seminar on Race and Racism Parties, Voting, Media, and Elections

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Gregory Saxton, Assistant Professor, Department of Communication, University at Buffalo-SUNY, 2000. (Co-directed) Ali Valenzuela, Assistant Professor, Department of Politics, Princeton University, 2011. Jacqueline White, Deputy Chief Administrative Officer, County of Los Angeles, 2004. Nathan D. Woods, Director, Welch Consulting, Washington, DC, 2004. Doctoral Committee Memberships Elizabeth Bergman, Assistant Professor, California State University East Bay, 2001. Jeff Cummins, Assistant Professor, California State University, Fresno, 2003. Elizabeth DeSouza, Visiting Assistant Professor, Claremont Graduate University, 1999. Rose Ernst, Assistant Professor, Seattle University, 2004. Scott Frisch, Associate Professor, Department of Political Science, California State University, Channel Islands, 1997. Marcia Godwin, Assistant Professor, Public Administration, University of LaVerne, 2000. Christopher Hoene, Director, Center for Policy and Research, National League of Cities, 1999. William Julius, Visiting Assistant Professor, Department of Political Science, California State University, Fullerton, 2002. George Monsavais, Executive Director, Two Minute Briefing, Provo, Utah, 2001. Deidre Sanders, Environmental Justice Program Manager, Pacific Gas and Electric, 2009. Nancy Shulock, Associate Professor of Public Policy and Administration, California State University, Sacramento, 1996. Recipient of the APSAs Harold Lasswell Award for the Best Dissertation in Policy Studies, 1997. Charles Turner, Associate Professor and Chair, Department of Political Science, California State University, Chico, 2000. Whittaker, Matthew. Staff Researcher, College of Education, University of Iowa. June 2006. Doctoral Dissertations in Progress Wendy Gross, (Co-chair) Mackenzie Israel-Trummel, (Chair) Rachel Stein, (Member) Lucila Figueroa, (Member) Jeanette Carmen Bustamante, (Chair) Rachel Gillumn, (Member) 14 App. 000297 - Pls.' SJ Opp'n, Kitchen v. Herbert
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SERVICE
Professional Service and Memberships: Vice-President-Eelect and Program Chair-Elect, Western Political Science Association, 20112012. Chair, Nominations Committee, Class III Section 3, American Academy of Arts and Sciences, 2011-14. Member, International Academic Advisory Board, the United States Studies Centre at the University of Sydney, NSW, Australia, 2011-present. Academic and Research Program Review Subcommittee2011-2012. Member, APSA Standing Committee on Conference Siting, 2011-present. Guest Co-Editor: Annual Review of Political Science, 2011. APSR Editorial Search Committee, American Political Science Association, 2010-2011. Nominations Committee, Class III Section 3, American Academy of Arts and Sciences, 2010-11. Executive Board, Consortium of Social Science Associations (COSSA), 2010. President, Midwest Political Science Association, 2009-2010. President-elect, Midwest Political Science Association, 2008-2009. Southern Political Science Association, Committee on the Status of Gays, Lesbians and Bisexuals, 2008-2009. Western Political Science Association PRQ Best Paper Award Committee, 2008-2009. NSF IGERT Panelist, 2007 Vice-President, Midwest Political Science Association, 2006-2007. Member, APSA Pi Sigma Alpha Award Committee, 2006-2007. General Program Chair, 2006 Annual Meeting of the Midwest Political Science Association. Board of Overseers, American National Election Study, 2006-2009 Member, WPSA Best Paper on Latino/a Politics Committee, 2005-2006. President, Latino Caucus of the American Political Science Association, 2004-2005. Member, Executive Council of the American Political Science Association, 2002-2004. Member of the Councils Administrative Committee, 2003-2004; Member of the Councils Sub-committee on Public Presence, 2003-2004. Member, Nominations Committee, American Political Science Association, 2005-2006. Section Program Co-Chair, Organized Section on Race, Ethnicity, and Politics, 2005 Annual Meeting of the American Political Science Association. Member, Executive Council of the Western Political Science Association, 2005-2008. Member, Executive Council of the Organized Section on Elections, Voting Behavior, and Public Opinion of the APSA, 2002-2004. Member, Editorial Board, American Journal of Political Science, January, 2002-2009. Member, Editorial Board, Journal of Politics, January, 2005-2007; 2009-present. Member, Editorial Board, Political Research Quarterly, June 2006-present. Member, Editorial Board, PS: Political Science & Politics, January, 2002-2004. Member, Executive Council of the Midwest Political Science Association, 2000-2003. Member, Latino Scholarship Fund Award Committee, American Political Science Association, 2003-2005. Member, Midwest Political Science Association Ad Hoc Committee on Short Courses.

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Chair, Western Political Science Associations Committee on the Status of Chicanos, 20012003. Member, American Political Science Associations Committee on the Status of Latinos y Latinas in the Profession, 1999-2001. Member, Western Political Science Associations Committee on the Status of Chicanos, 2000-2001. Member, Steering Committee, Latino Scholarship Fund, APSA Centennial Campaign Invited Lecture, the Joseph Serna Center, California State University, Sacramento, October 2008. Invited Presentation, University of Illinois at Urbana, La Casa Cultural Latina and Department of Political Science, November 2007 Invited Presentation, Immigrant Political Incorporation Workshop, Harvard, September 2007 Invited Presentation, Democratic Caucus of the House of Representatives, February 2007 Invited Presentation, Center for American Progress, Washington, DC, February 2007 Invited Presentation, Latino Issues Forum and San Francisco Foundation, February 2007 Invited Lecture, University of California, Davis, February, 2007 Invited Lecture, Texas Tech University, Lubbock, April 2006 Invited Lecture, Texas State University, San Marcos, April 2006 Invited Lecture, University of California, Berkeley, October 2005 Invited Panelist, American Anthropological Society Conference on Race and Human Variation, Arlington, VA, September 2004 Invited Lecture, Texas A&M University, College Station, November 2004 Invited Lecture, University of California, San Diego, May 2004 Invited Lecture, Washington University in St. Louis, February, 2004 Invited Lecture, University of Wisconsin, Madison, April, 2003 Invited Lecture, University of Washington, November, 2003 Invited Lecture, Hunter College-CUNY, October, 2002 Invited Lectures, Ralph Bunche Institute, 2000, 2004 Invited Discussant, Conference on Migration, UC-San Diego, Fall 2000 Invited Lecture, University of California, Irvine, April, 1999 Invited Panelist, Conference on the New Californios UC-Irvine, April 1997. Invited Panelist, Conference on The 1996 elections and the Latino Community, School of Public Policy, University of California, Berkeley, November 1996. Section Program Chair, Voting and Elections, 2001 Meeting of the WPSA Manuscript Reviewer: APSR, AJPS, JOP, LSQ, PRQ, SSQ, JCR, Political Behavior, Political Psychology, El Centro, APR, NSF, PS, International Migration Review University and College Service: Stanford University Chair, Program in Chicano/a Studies, Center for Comparative Studies in Race and Ethnicity. 2008-2014. Faculty Senate, 2010-2013. Editorial Board, Series in the Comparative Studies in Race and Ethnicity, Stanford University Press, 2010-present. Leading Matters Lecturer, November 13, 2010. 16 App. 000299 - Pls.' SJ Opp'n, Kitchen v. Herbert
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IRiSS Executive Committee, 2009-present. Founding Co-Director, Stanford Center for American Democracy, within the Institute for Research in the Social Sciences, 2008-present. Founding Director, Institute on the Politics of Inequality, Race and Ethnicity at Stanford. 2009-present. Member, Guiding Concilio, El Centro Chicano, 2009-2011. Invited Speaker, Sophomore Seminar, Stanford University, 2008, 2009. University of Washington Departmental Review Committee, Department of Communication, 2007-8 Founder and Director, University of Washington Institute for the Study of Ethnicity, Race, and Sexuality, 2006-present. University of Iowa Faculty Senate, 2003-2004. Member, Faculty Senate Committee on Government Relations, 2002-2004. Member, University of Iowa Council on the Status of Latinos, 2001 to present. Member, Board in Control of Athletics, 2003-2004; Subcommittees on Academic Achievement and Equity. Member, Sexuality Studies Program Advisory Committee, 2003-2004. Member, Obermann Center Advisory Committee, 2003-2005. Member, Interdisciplinary Research Grant Review Committee, Obermann Center, December 2003. Faculty Host, Provost Candidate Forum, December 2003. Member, Faculty Assembly Nominations Committee, April 2003. Presentation to the Latino Youth Summit, Sponsored by Opportunity at Iowa, October 31, 2003. Visiting Lecture, Hispanic Student Association, Cornell College, November, 2002. Paper Presentation, Changes in Latitudes, Changes in Attitudes: How Latino Immigration and Political Incorporation are Changing the Face of American Politics, at the public forum, Latinos-Ignored No Longer, sponsored by the UI Council on the Status of Latinos in Commemoration of Latino Heritage Month, October 15, 2002. Key Note Speaker, UI Latino Commencement Celebration, May 2002. Conference Presentation, Western Hemispheric Integration, Democracy and the Rule of Law, organized by the UI College of Law and International Programs, April, 2002. Claremont Graduate University Member, Affirmative Action and Diversity Committee, Serving on the Information Science Search Committee as part of these duties; Member, Campus Master Planning Committee; Member, Commencement Speaker Committee; Member, Lambda Faculty and Staff Association, Curriculum sub-committee, 1997-2001; Committee for an Undergraduate Major in Political Psychology, April 1999 to 2000; Panel Speaker, Inauguration of Steadman Upham as President of the University; Faculty Executive Committee, July 1, 1997 to June 30, 1999; Space Allocation and Facilities Review Committee, March 1997-2001; 17 App. 000300 - Pls.' SJ Opp'n, Kitchen v. Herbert
Appendix Page 308
Diversity Task Force, January 1997 to May 1998; Chair, Campus-wide Working Group on Financial Aid and Fellowship Allocation Policy, Spring 1998; Community Fellows Selection Committee, October, 1998; UC-Davis Member, Central Valley Initiative Planning Committee, Vice-Provost's Office, Spring 1994; Member, Chancellor's Committee on Lesbian, Gay and Bisexual Issues, April 1994-1996; Member, Institute of Governmental Affairs--SSDS Statistical Consultant Search Committee, Summer 1994; Chair, Institute of Governmental Affairs-ICPSR Committee and UCD Faculty ICPSR Liason, 1994-95; Departmental Service: Stanford University Member, Political Science Omnibus Search Committee, 2011-2012. Member, CCSRE Strategic Planning Committee, 2011-2012. Member, Political Science Graduate Admissions, 2010-2011. Member, African-American Politics Search Committee, 2009-2010. American Politics Field Chair, 2008-09. Member, Graduate Admissions, 2008-09. Member, American Politics Search Committee, 2008-09. Member, CCSRE Curriculum Committee, 2008-present. Chair, Ernesto Galarza Memorial Lecture Committee, 2008-present. Director, CCSRE Public Policy Institute, 2009-present. University of Washington Member, Lev Award Committee, 2007 Member, Third-year Review Committee for Matt Barreto, 2007 Member, Graduate Admissions Committee, 2006-08 Chair, Tenure and Promotion Review for Luis Ricardo Fraga, 2006 Chair, African-American Politics Target of Opportunity Search, 2005-06. Member, Graduate Program Committee, 2005-07. Member, Honors Program Interview Committee, 2005-06. University of Iowa Member, Department Executive Committee, 2003-04. Member, Department Bose Speaker Series Committee, 2003-04. Member, Tenure Review Committee for Sara M. Mitchell, December 2003. Chair, American Politics Doctoral Examination Field Committee, November 2003. Chair, Third-year Review Committee, Fred Boehmke, 2002-2003. Chinese Politics Search Committee, 2002 18 App. 000301 - Pls.' SJ Opp'n, Kitchen v. Herbert
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Computer Committee, 2001-2002 Claremont Graduate University Coordinator of the MA program in American Politics, 1999-2001; American Politics Field Committee; Admissions and Awards Committee, Chair: July 1997-June 1999; Political Economy Search Committee 1996-1997; UC-Davis American Politics Search Committee, 1995-96; MA Graduate Program Advisor (American, Public Law, and Theory), 1994-95; Member, Graduate Affairs Committee, 1994-96; Coordinator, Political Science Research Colloquium, 1992-1994; Law and Politics Search Committee, 1993-94; Director, Public Affairs Internship Program, 1993-94; Co-Director, Public Affairs Internship Program, 1992-93; Member, Undergraduate Affairs Committee 1991-92;

Appendix Page 310
Exhibit B
Appendix Page 311
Sources The American National Election Studies (ANES; www.electionstudies.org). The ANES 2008 Time Series Study [dataset]. Stanford University and the University of Michigan [producers]. Barth, Jay, L. Marvin Overby, and Scott H. Huffmon. 2009. Community Context, Personal Contact, and Support for Anti-Gay Rights Referendum. Political Research Quarterly 62 (2): 355-365 Cahill, Sean. 2007. The Anti-Gay Marriage Movement. In Rimmerman, Craig A., and Clyde Wilcox, eds., The Politics of Same Sex Marriage. Chicago: University of Chicago Press. Campbell, David C. and Carin Robinson. 2007. Religious Coalitions For and Against Gay Marriage. In Rimmerman, Craig A., and Clyde Wilcox, eds., The Politics of Same Sex Marriage. Chicago: University of Chicago Press. Dahl, Robert A. 1956. A Preface to Democratic Theory. Chicago: University of Chicago Press. FBI Hate Crime Statistics. Various years. For 2007, see: http://www.fbi.gov/ucr/hc2007/index.html Gartner, Scott S. and Gary M. Segura. 1997. Appearances can be Deceptive: SelfSelection, Social Group Identification, and Political Mobilization. Rationality and Society, 9 (2): 131-162. General Social Surveys, 1972-2008. [machine-readable data file]. Principal Investigator, James A. Davis; Director and Co-Principal Investigator, Tom W. Smith; CoPrincipal Investigator, Peter V. Marsden, NORC ed. Chicago: National Opinion Research Center, producer, 2005; Storrs, CT: The Roper Center for Public Opinion Research, University of Connecticut, distributor. 1 data file (53,043 logical records) and 1 codebook (2, 656 pp). Haider-Markel, Donald P. and Kenneth J. Meier. 1996. The Politics of Gay and Lesbian Rights: Expanding the Scope of the Conflict. The Journal of Politics, 58 (2): 332-349. Haider-Markel, Donald P., Mark R. Joslyn and Chad J. Kniss. 2000. Minority Group Interests and Political Representation: Gay Elected Officials in the Policy Process. The Journal of Politics, 62 (2): 568-577. Haider-Markel, Donald P., and Mark R. Joslyn. 2005. Attributions and the Regulation of Marriage: Considering the Parallels between Race and Homosexuality. PS: Political Science and Politics, 38 (2): 233-239.
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Haider-Markel, Donald P., Alana Querze, Kara Lindaman. 2007. Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights. Political Research Quarterly, 60 (2): 304-314. Hero, Rodney. 1992. Latinos and the US Political System. Philadelphia: Temple University Press. Lax, Jeffrey, and Justin H. Phillips. 2009. Gay Rights in the States: Public Opinion and Policy Responsiveness. American Political Science Review, 103 (3): 367-386. Lupia, Arthur, Yanna Krupnikov, Adam Seth Levine, Spencer and Alexander Von Hagen-Jamar. 2009. Why State Constitutions Differ in their Treatment of SameSex Marriage. Presented at the Annual Meeting of the American Political Science Association, Toronto, ON, September 2-5. Madison, James, Alexander Hamilton, and John Jay. 1988 ed. (originally published 178788). The Federalist Papers. Edited by Garry Wills. New York: Bantam Books. National Coalition of Anti-Violence Programs. 2009. Hate Violence Against Lesbian, Gay, Bisexual and Transgender People in the United States, 2008. National Election Pool, Edison Media Research, and Mitofsky International. 2004. NATIONAL ELECTION POOL GENERAL ELECTION EXIT POLLS, 2004.[Computer file]. ICPSR version. Somerville, NJ: Edison Media Research/New York, NY: Mitofsky International [producers], 2004. Ann Arbor, MI: Inter-university Consortium for Political and Social Research [distributor], 2005. Olson, Mancur. 1965. The Logic of Collective Action. Cambridge: Harvard University Press. Out Officials, The Gay & Lesbian Leadership Institute, at http://www.glli.org/out_officials. Schattschneider, E.E. 1960. The Semisovereign People. New York: Harcourt, Brace Jovanovich. Truman, David. 1951. The Governmental Process. New York: Knopf. Zaller, John. 1992. The Nature and Origins of Mass Opinion. Cambridge: Cambridge University Press.
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Exhibit 8
No. 12-307
In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES ON THE MERITS QUESTION
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record STUART F. DELERY Principal Deputy Assistant Attorney General SRI SRINIVASAN Deputy Solicitor General PRATIK A. SHAH Assistant to the Solicitor General MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term marriage for all purposes under federal law, including the provision of federal benefits, as only a legal union between one man and one woman as husband and wife. 1 U.S.C. 7. It similarly defines the term spouse as a person of the opposite sex who is a husband or a wife. Ibid. The question presented is: Whether Section 3 of DOMA violates the Fifth Amendments guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.
(I)
PARTIES TO THE PROCEEDING
Petitioner, who was a defendant in the district court and an appellant in the court of appeals, is the United States of America. The private individual respondent, who was plaintiff in the district court and an appellee in the court of appeals, is Edith Schlain Windsor. Respondent Bipartisan Legal Advisory Group of the United States House of Representatives intervened in this case in defense of Section 3 of DOMA.
(II)
TABLE OF CONTENTS
Page Opinions below ................................................................................ 1 Jurisdiction ...................................................................................... 1 Constitutional and statutory provisions involved....................... 2 Statement ......................................................................................... 2 Summary of argument ................................................................. 12 Argument: Section 3 of DOMA violates equal protection ...................... 16 A. Classifications based on sexual orientation should be subject to heightened scrutiny ................. 18 1. Gay and lesbian people have been subject to a history of discrimination ................................. 22 2. Sexual orientation bears no relation to ability to perform or contribute to society ....................... 27 3. Gay and lesbian people possess a distinguishing characteristic that defines them as a group ....................................................... 29 4. Gay and lesbian people are minorities with limited political power .................................... 32 B. Section 3 of DOMA fails heightened scrutiny........... 37 1. Morality .................................................................... 38 2. Traditional definition of marriage ......................... 39 3. Procreation and child-rearing................................ 41 4. Sovereign choice ...................................................... 44 5. Federal fisc ............................................................... 45 6. Other interests asserted by BLAG ....................... 47 a. Uniformity and administrability ...................... 47 b. Proceeding with caution .................................... 50 C. The government does not challenge the constitutionality of DOMA Section 3 under deferential rational-basis review, but Section 3 would fail a more searching form of that review ................. 51 Conclusion ...................................................................................... 54 Appendix Constitutional and statutory provisions ........... 1a
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ...................................................................................... 51 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)............................... 3 Baker v. Nelson, 409 U.S. 810 (1972) ............................ 7, 8, 20 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) ..................... 21, 22 Bishop v. Wood, 426 U.S. 341 (1976) ..................................... 18 Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ...................................................................................... 39 Bolling v. Sharpe, 347 U.S. 497 (1954) ................................. 16 Boutilier v. INS, 387 U.S. 118 (1967) ................................... 24 Bowen v. Bowen, 688 So. 2d 1374 (Miss. 1997) .................... 25 Bowen v. Gilliard, 483 U.S. 587 (1987) ..................... 20, 30, 32 Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995)................... 25 Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by, Lawrence v. Texas, 539 U.S. 558 (2003) .......... 21, 39, 40 Bray v. Alexandria Womens Health Clinic, 506 U.S. 263 (1993) ............................................................................... 31 Califano v. Goldfarb, 430 U.S. 199 (1977) ............................ 50 Christian Legal Socy v. Martinez, 130 S. Ct. 2971 (2010) ...................................................................................... 31 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...................................................................... passim City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ...................................................................................... 19 Clark v. Jeter, 486 U.S. 456 (1988) ............................ 19, 29, 37 Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995), vacated by, 518 U.S. 1001 (1996) ....... 21, 26 FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) ............ 52
V CasesContinued: Page
Frontiero v. Richardson, 411 U.S. 677 (1973) .............................................................. 14, 20, 28, 29, 35 Garcia v. United States, 469 U.S. 70 (1984) ........................ 48 Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) ....................................................................................... 49 Graham v. Richardson, 403 U.S. 365 (1971) ........... 11, 30, 46 H.H., Ex parte, 830 So. 2d 21 (Ala. 2002) ............................. 25 Heller v. Doe, 509 U.S. 312 (1993) ............................. 11, 40, 51 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ................................................................................. 30, 32 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) .............................. 21, 22 Hill v. INS, 714 F.3d 1470 (9th Cir. 1983) ........................... 24 INS v. Chadha, 462 U.S. 919 (1983) ........................................ 7 Jimenez v. Weinberger, 417 U.S. 628 (1974) ........................ 48 Lalli v. Lalli, 439 U.S. 259 (1978).......................................... 27 Lawrence v. Texas, 539 U.S. 558 (2003) ...................... passim Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ............................................................................... 51 Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569 (N.D. Cal. 1982).............................................. 24 Loving v. Virginia, 388 U.S. 1 (1967) ................................... 45 Lyng v. Castillo, 477 U.S. 635 (1986) ........................ 30, 32, 36 Marriage Cases, In re, 183 P.3d 384 (Cal. 2008) ................. 34 Massachusetts v. United States Dept of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012) .............................................................................. passim Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ................................................................................ 28, 36
VI CasesContinued: Page
Mathews v. Lucas, 427 U.S. 495 (1976) .......................... 27, 30 Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) ...................................................................................... 37 Palmore v. Sidoti, 466 U.S. 429 (1984) ................................. 39 Pedersen v. OPM, No. 3:10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012) ........................................ 44 Plyler v. Doe, 457 U.S. 202 (1982) ................................... 15, 46 Pryor v. Municipal Court, 599 P.2d 636 (Cal. 1979) .......... 25 Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997)......................................... 21 Romer v. Evans, 517 U.S. 620 (1996) ......19, 26, 39, 46, 52, 53 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ................................................................................... 36 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ..................... 21 Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996)......................................... 21 Turner v. Safley, 482 U.S. 78 (1987) ..................................... 41 United States v. Virginia, 518 U.S. 515 (1996) .............................................................. 14, 15, 19, 37, 40 United States Dept of Agric. v. Moreno, 413 U.S. 528 (1973) ...................................................................................... 52 Watkins v. United States Army, 847 F.2d 1329 (9th Cir. 1988), revd en banc, 875 F.3d 699 (9th Cir. 1989) ....................................................................................... 32 Watson v. City of Memphis, 373 U.S. 526 (1963) ................ 50 Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) ............................................................................... 51 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ........................... 21 Zobel v. Williams, 457 U.S. 55 (1982) ................................... 47 Zuber v. Allen, 396 U.S. 168 (1969) ....................................... 48
VII Constitution and statutes: Page
U.S. Const.: Art. I, 8 (Spending Clause) ........................................... 45 Art. III .................................................................................. 6 Amend. V .................................................................... 4, 6, 54 Due Process Clause .................................................... 16 Amend. X ............................................................................ 45 Amend. XIV: Due Process Clause .................................................... 19 Equal Protection Clause ............................................ 19 Act of Feb. 5, 1917, ch. 29, 3, 39 Stat. 875 ......................... 24 Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419: 2, 110 Stat. 2419 (28 U.S.C. 1738C).......................... 2, 45 3, 110 Stat. 2419 (1 U.S.C. 7) ............................... passim Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 ............................................................................... 24 10 U.S.C. 654 ............................................................................ 24 26 U.S.C. 2056(a) ....................................................................... 4 28 U.S.C. 530D ........................................................................... 4 38 U.S.C 101(3) ........................................................................ 17 38 U.S.C 101(31) ...................................................................... 17 38 U.S.C 1310 ........................................................................... 17 38 U.S.C 2402(a)(5) .................................................................. 17 38 U.S.C 2402(a)(6) .................................................................. 17 Public Statute Laws of the State of Connecticut, 1808 tit. LXVI, ch. 1, 2, 294-295 & n.1 (enacted 1642; rev. 1750) ................................................................................ 22 Tenn. House Bill No. 600, Pub. Ch. 278 (2011), http://state.tn.us/sos/acts/107/pub/pc0278.pdf .................. 33
VIII Miscellaneous: Page
Am. Acad. of Child and Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement, 2009, http://www.aacap.org/cs/root/ policy_statements/gay_lesbian_transgender_and_ bisexual_parents_policy_statement ................................... 42 Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, Feb. 2002, http:// aappolicy.aappublications.org/cgi/content/full/ pediatrics;109/2/339 .............................................................. 42 Am. Med. Assn, AMA Policies on GLBT Issues, http://www.ama-assn.org/ama/pub/about-ama/ourpeople/member-groups-sections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.shtml ...................................................... 42 Am. Psychiatric Assn, Position Statement on Homosexuality and Civil Rights (1973), reprinted in 131 Am. J. Psychiatry 497 (1974) ....................................... 28 Am. Psychological Assn, Just the Facts About Sexual Orientation and Youth, http://www.apa.org/pi/lgbt/resources/ just-the-facts.pdf ......................................................... 32 Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), http://www.apa.org/pi/lgbt/resources/ therapeutic-response.pdf ........................................... 32 Sexual Orientation, Parents, & Children, July 2004, http://www.apa.org/about/governance/ council/policy/parenting.aspx .................................... 42
IX MiscellaneousContinued: Page
Timothy J. Biblarz & Judith Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Family 3 (2010), http://www.squareonemd.com/pdf/ Does%20the%20Gender%20of%20Parents%20Matt er%202010.pdf ....................................................................... 42 Child Welfare League of Am., Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/ culture/glbtqposition.htm .................................................... 42 Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, 2004, http://www.cbo.gov/sites/default/files/ cbofiles/ftpdocs/55xx/doc5559/06-21-samesexmarriage.pdf .................................................................... 46 142 Cong. Rec. (1996): p. 22,453 .............................................................................. 47 p. 22,459 .............................................................................. 47 John Hart Ely, Democracy and Distrust (1980) ................ 21 Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280, S. Doc. No. 241, 81st Cong., 2d Sess. (1950) .......................................................... 23 William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St. U. L. Rev. 703 (1997) ...................................................... 25 FBI: Hate Crime Statistics 2011, http://www.fbi.gov/ about-us/cjis/ucr/hate-crime/2011/tables/ table-1 ........................................................................... 24 Hate Crime Statistics, 2007, http://www2.fbi.gov/ ucr/hc2007/table_01.htm ............................................ 25
X MiscellaneousContinued: Page
Florida State Legislative Investigation Committee, Report: Homosexuality and Citizenship in Florida (1964) ................................................................................. 26 H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996)........ passim Douglas C. Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221 (1994)......................... 32 Gregory M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Poly 176 (2010), http://www.springerlink.com/content/ k186244647272924/fulltext.pdf ............................................ 31 Andrew Koppelman, The Difference the MiniDOMAs Make, 38 Loy. U. Chi. L.J. 265 (2007) ................ 33 National Conference of State Legislatures, State Same-Sex Marriage Laws: Legislatures and Courts, last updated Feb. 14, 2013, http://www.ncsl. org/issues-research/human-services/same-sexmarriage-laws.aspx .............................................................. 34 Richard A. Posner, Sex and Reason (1992) ......................... 32 Remarks by the President and Vice President at Signing of the Dont Ask, Dont Tell Repeal Act of 2010, Dec. 22, 2010, http://www.whitehouse. gov/the-press-office/2010/12/22/remarks-presidentand-vice-president-signing-dont-ask-dont-tellrepeal-a .................................................................................. 28 Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960-1980, 12 Colum. Hum. Rts. L. Rev. 159 (1980) ................................ 25
XI MiscellaneousContinued: Page
Brad Sears et al., The Williams Institute, Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment, Sept. 2009, http://williamsinstitute.law.ucla.edu/ research/workplace/documenting-discrimination-on -the-basis-of-sexual-orientation-and-genderidentity-in-state-employment ....................................... 23, 24 A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times, Nov. 4, 2010 ............................. 34 U.S. Gen. Accounting Office, Report No. GAO-04353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/assets/100/ 92441.pdf .................................................................................. 3 Teresa Welsh, Should Employers Be Able to Fire Someone for Being Gay?, U.S. News, May 14, 2012, http://www.usnews.com/opinion/articles/2012/05/14/ should-employers-be-able-to-fire-someone-forbeing-gay ............................................................................... 35 Robert Wintemute, Sexual Orientation and Human Rights (1995) ......................................................................... 26

No. 12-307 UNITED STATES OF AMERICA, PETITIONER v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES ON THE MERITS QUESTION
OPINIONS BELOW
The opinion of the court of appeals (Supp. App. 1a83a)1 is reported at 699 F.3d 169. The opinion of the district court (Pet. App. 1a-22a) is reported at 833 F. Supp. 2d 394.
JURISDICTION
The judgment of the district court was entered on June 6, 2012. Notices of appeal were filed on June 8, 2012, and June 14, 2012 (Pet. App. 25a-26a, 27a-29a). A petition for a writ of certiorari before judgment was filed on September 11, 2012. The judgment of the court of appeals was entered on October 18, 2012. On
Supp. App. refers to the appendix to the governments supplemental brief at the certiorari stage.
1
(1)
2 October 26, 2012, the United States filed a supplemental brief pursuant to Rule 15.8 of the Rules of this Court. The petition for a writ of certiorari was granted on December 7, 2012. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in an appendix to this brief. App., infra, 1a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two operative provisions. The first, Section 2, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA 2, 110 Stat. 2419 (28 U.S.C. 1738C). The second provision, Section 3, which is at issue in this case, defines marriage and spouse for all purposes under federal law to exclude marriages between persons of the same sex, regardless of whether a marriage is recognized under state law. Section 3 provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers
3 only to a person of the opposite sex who is a husband or a wife. DOMA 3, 110 Stat. 2419 (1 U.S.C. 7). b. Congress enacted DOMA in response to the Hawaii Supreme Courts decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (House Report). Hawaii ultimately did not permit same-sex marriage, but other states later recognized such marriages under their respective laws. Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them. Section 3, however, excludes such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/assets/100/92441.pdf (identifying 1138 federal laws contingent on marital status or in which marital status is a factor). Section 3 thus denies to legally married same-sex couples many substantial benefits afforded to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws. Id. at 16-18. 2. In 2007, plaintiff married Thea Spyer, her samesex partner of more than 40 years, in Canada. The couple resided in New York. When Spyer died in 2009, she left her estate for plaintiff s benefit. Pet. App. 3a; J.A. 152 (Am. Compl. 10, 11). In her capacity as executor of Spyers estate, plaintiff paid $363,053 in federal estate taxes. She then
4 filed a refund claim under 26 U.S.C. 2056(a), which provides that property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes. The Internal Revenue Service (IRS) denied the refund claim solely on the ground that plaintiff is not a spouse within the meaning of DOMA Section 3 and thus not a surviving spouse within the meaning of Section 2056(a). Pet. App. 3a4a; J.A. 169-170 (Am. Compl. 72-78), 245-252 (IRS denial letter). The IRS did not identify or address any question concerning the recognition of plaintiffs marriage under New York law. J.A. 251-252. Plaintiff filed this tax-refund suit challenging the constitutionality of Section 3 in the United States District Court for the Southern District of New York. She contended that, by treating legally married samesex couples in New York differently from legally married opposite-sex couples in New York, Section 3, as applied by the IRS, violates the equal protection component of the Fifth Amendment. She sought declaratory and injunctive relief, as well as recovery of the $363,053 in federal estate taxes paid by Spyers estate. Pet. App. 4a; J.A. 172 (Am. Compl. 82-85). 3. a. After plaintiff filed her complaint, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that the President and he had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. J.A. 183-194. The letter explained that, while the Department of Justice had previously defended Section 3 where binding precedent in the circuit required application of rational-basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a
5 new examination of the issue after two lawsuits (this one and Pedersen v. OPM, petition for cert. before judgment pending, No. 12-231 (filed Aug. 21, 2012)) had been filed in a circuit that had yet to address the appropriate standard of review. J.A. 184. The Attorney General explained that, after examining factors identified by this Court as relevant to the applicable level of scrutinyincluding the history of discrimination against gay and lesbian individuals and the irrelevance of sexual orientation to legitimate policy objectivesthe President and he had concluded that Section 3 warrants application of heightened scrutiny rather than rational-basis review. J.A. 185-189. The Attorney General further explained that the President and he had concluded that Section 3 fails that standard and is therefore unconstitutional. J.A. 189-191. The Attorney Generals letter reported that, notwithstanding this determination, the President had instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executives obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the laws constitutionality. J.A. 191-192. The Attorney General explained that [t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised. Ibid. In the interim, the Attorney General instructed the Departments lawyers to notify courts of the Presidents views and cease defense of Section 3. J.A. 191193. Finally, the Attorney General noted that the Departments lawyers would take appropriate steps to provid[e] Congress a full and fair opportunity to
6 participate in litigation concerning the constitutionality of Section 3. J.A. 193. b. Following the Attorney Generals announcement, the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a five-member bipartisan leadership group, moved to intervene in this case in defense of Section 3.2 The district court granted the motion. J.A. 218; see Pet. App. 4a. Both the government and BLAG moved to dismiss plaintiff s challenge to the constitutionality of Section 3. While BLAG presented arguments in support of Section 3s constitutionality, the government explained that it was filing a motion to dismiss plaintiff s constitutional claim solely to ensure that the court had Article III jurisdiction to enter judgment for or against the United States. J.A. 437-439. The governments brief on the merits set forth its view that heightened scrutiny applies to Section 3 and that, under that standard, Section 3 violates the equal protection guarantee of the Fifth Amendment. J.A. 486489. 4. The district court denied the motions to dismiss and granted summary judgment in favor of plaintiff, concluding that Section 3 of DOMA violates equal protection. Pet. App. 1a-22a. The court first rejected two threshold arguments advanced by BLAG: (1) the court concluded that New York law in 2009 (the relevant tax year) required recognition of same-sex marriages performed in other jurisdictions, thus ensuring Article III standing, id. at 6a-8a; and (2) the court held that this Courts summary dismissal of the appeal
Two of the groups five members declined to support intervention. J.A. 196 n.1.
2
7 in Baker v. Nelson, 409 U.S. 810 (1972), did not foreclose plaintiffs challenge because Section 3, unlike the statute at issue in Baker, does not preclude or otherwise inhibit a state from authorizing same-sex marriage (or issuing marriage licenses), Pet. App. 9a. Turning to the merits of plaintiffs challenge, the district court declined to decide whether heightened scrutiny or even a more searching form of rational basis scrutiny is required. Id. at 13a-14a. The court instead held that neither the legislative purposes articulated in support of Section 3 at the time of its enactment nor additional interests offered by BLAG bear a rational relationship to a legitimate governmental objective. Id. at 13a-22a. 5. The court of appeals affirmed. Supp. App. 1a83a. a. At the outset, the court of appeals rejected BLAGs argument that the government is not an aggrieved party that can take an appeal. Supp. App. 4a5a. Relying on INS v. Chadha, 462 U.S. 919, 931 (1983), the court held that the government is aggrieved because the United States continues to enforce Section 3 and Section 3s constitutionality will have a considerable impact on many operations of the United States. Supp. App. 4a-5a. b. The court of appeals then rejected BLAGs threshold request that it should certify to the New York Court of Appeals the question, which BLAG characterized as implicating plaintiffs standing, whether New York in 2009 recognized same-sex marriages entered into in other jurisdictions. Supp. App. 5a-7a. Relying on the useful and unanimous rulings of New Yorks intermediate appellate courts on that question, id. at 6a, the court of appeals agreed with
8 the district court and concluded that New York recognized such marriages at the relevant time, id. at 6a-7a. c. The court of appeals also rejected BLAGs argument that this Courts summary dismissal of the appeal in Baker, supra, controls plaintiffs equal protection challenge. Supp. App. 7a-11a. After noting the limited precedential force of summary dismissals, the court of appeals explained that the question whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA is sufficiently distinct from the question in Baker: whether same-sex marriage may be constitutionally restricted by the states. Id. at 8a. The court reasoned, moreover, that even if Baker might have had resonance when it was decided, it does not today because of the manifold changes to the Supreme Courts equal protection jurisprudence since Baker. Id. at 9a. d. Turning to the constitutionality of Section 3, the court of appeals noted that the existence of a rational basis for Section 3 of DOMA is closely argued, Supp. App. 12a, but concluded that it need not resolve that argument if heightened scrutiny is available, as it is in this case, id. at 14a. In considering the applicable level of scrutiny, the court first looked to whether the class has historically been subjected to discrimination. Id. at 16a-17a. The court found [i]t is easy to conclude that homosexuals have suffered a history of discrimination. Id. at 16a. Perhaps the most telling proof of animus and discrimination, the court determined, is that, for many years and in many states, homosexual conduct was criminal. Ibid. Noting that BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s,
9 the court concluded that [n]inety years of discrimination is entirely sufficient. Id. at 17a. The court of appeals then assessed whether sexual orientation, the distinguishing class characteristic, typically bears on a persons ability to contribute to society. Supp. App. 17a-18a. The court reasoned that, while [t]here are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individuals ability to contribute to society, sexual orientation is not one of them. Id. at 18a. The court determined that sexual orientation has nothing to do with aptitude or performance. Ibid. Next, the court of appeals examined the discernibility of sexual orientation, Supp. App. 19a-21a, explaining that what matters here is whether the characteristic invites discrimination when it is manifest, id. at 21a. The court rejected the characterization of this factor as one confined to immutability, finding that the test is broader. Id. at 19a-20a. Analogizing to classifications based on alienage, illegitimacy, and national origin, id. at 19a-21a, the court concluded that sexual orientation is a sufficiently distinguishing characteristic to identify the discrete minority class of homosexuals, id. at 21a. Finally, the court evaluated the political power of gay and lesbian people. Supp. App. 21a-23a. The court acknowledged that homosexuals have achieved political successes over the years. Id. at 21a. But the relevant question, the court explained, is whether they have the strength to politically protect themselves from wrongful discrimination. Ibid. Pointing to the seemingly small number of acknowledged homosexuals in positions of power, among other evidence, id. at 22a, the court concluded that gay and
10 lesbian people cannot adequately protect themselves from the discriminatory wishes of the majoritarian public, id. at 23a. Based on the weight of the factors and on analogy to the classifications recognized as suspect and quasisuspect, the court concluded that the class is quasisuspect and thus calls for the application of intermediate scrutiny. Supp. App. 23a. e. The court of appeals then held that Section 3 of DOMA fails under intermediate scrutiny. Supp. App. 23a-31a. The court concluded that the purposes advanced by BLAG and Congress in support of Section 3 do not bear a substantial relationship to an important governmental objective, id. at 24a-30a, noting that BLAGs counsel all but conceded [at argument] that these reasons for enacting DOMA may not withstand intermediate scrutiny, id. at 24a. The court first determined that an asserted interest in maintaining a consistent federal definition of marriage cannot withstand intermediate scrutiny. Supp. App. 24a. The court explained that, among other problems, DOMAs sweep arguably creates more discord and anomaly than uniformity; [b]ecause DOMA defined only a single aspect of domestic relations law, it left standing all other inconsistencies in the laws of the states, such as minimum age, consanguinity, divorce, and paternity. Id. at 25a. Nor could the court of appeals discern a substantial relationship between Section 3 and the interest in sav[ing] government resources. Supp. App. 26a. DOMA is so broad, the court concluded, id. at 27a, that it transcends a legislative intent to conserve public resources, id. at 28a. And while [f]iscal prudence is undoubtedly an important government inter-
11 est, id. at 27a, the court noted, the saving of welfare costs cannot justify an otherwise invidious classification, ibid. (quoting Graham v. Richardson, 403 U.S. 365, 375 (1971)). Turning to the asserted interest in preserving traditional marriage as an institution, Supp. App. 28a, the court explained that the ancient lineage of a legal concept does not give a law immunity from attack, ibid. (quoting Heller v. Doe, 509 U.S. 312, 326 (1993) (brackets omitted)). The court concluded, moreover, that [e]ven if preserving tradition were in itself an important goal, DOMA is not a means to achieve it; because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, preserve the institution of marriage as one between a man and a woman. Id. at 29a (citation and internal quotation marks omitted). Finally, the court determined that Section 3 does not advance an interest in the encouragement of responsible procreation and child-rearing, id. at 30a, because DOMA does not affect in any way the incentives for opposite-sex couples to engage in such procreation and child-rearing, id. at 29a. Incentives for opposite-sex couples to marry and procreate (or not), the court concluded, were the same after DOMA was enacted as they were before. Id. at 30a. f. Judge Straub dissented in part. While he concurred with the parts of the courts opinion denying BLAGs motion to dismiss the governments appeal and declining to certify to the New York Court of Appeals the marriage-recognition issue, Supp. App. 31a, he would have held that Baker forecloses petitioners equal protection challenge, id. at 40a-48a. Even if Baker did not control, Judge Straub would
12 have upheld Section 3 applying rational-basis scrutiny. Id. at 48a-83a.

SUMMARY OF ARGUMENT
Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional. A. This Court has understandably reserved the application of heightened constitutional scrutiny to a small number of classifications. But the Court has yet to determine whether classifications based on sexual orientation qualify. Under the factors articulated by this Court, such classifications warrant heightened scrutiny. First, gay and lesbian people have been subject to a significant history of discrimination in this country. Until Lawrence v. Texas, 539 U.S. 558 (2003), criminal laws in many states prohibited their private sexual conduct. In addition, gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts. Second, sexual orientation, unlike disability or age, generally bears no relation to ability to participate in and contribute to society. Rather than dispute that unassailable fact, BLAG seeks to avoid its force by inventing its own query untethered to this Courts precedents (Br. 54): whether the classification turns on a characteristic relevant to the distinctions actual-
13 ly drawn. But that formulation would drain the constitutional inquiry of any real meaning by conflating the question whether a classification withstands heightened scrutiny in a particular case (the second step of the equal-protection analysis) with the antecedent question whether heightened scrutiny applies to that classification (the first step). Third, discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic. Sexual orientation is a core aspect of identity. Its expression, particularly in loving and committed relationships, is an integral part of human freedom. Lawrence, 539 U.S. at 577. There is broad scientific and medical consensus that sexual orientation is typically not a voluntary choice, and that efforts to change an individuals sexual orientation are generally futile and potentially harmful. In any event, as long as it distinguishes a group, a characteristic may support application of heightened scrutiny even ifas with illegitimacy or alienageit is subject to change or not readily visible. Fourth, gay and lesbian people are a minority group with limited political power. Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action. E.g., Lawrence, supra. The vast majority of state voter initiatives directed at gay and lesbian people, even within the last decade, have repealed protections against sexual-orientation discrimination or denied gay and lesbian people the ability to marry. In any event, as confirmed by the
14 applicability of heightened scrutiny to classifications based on gender, the fact that gay and lesbian people have achieved some political gains does not tilt this factor against, let alone preclude, heightened scrutiny. See Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion). B. Section 3 fails heightened scrutiny. None of Section 3s actual purposes as expressed in the House Report, or any of the additional interests now asserted by BLAG, substantially furthers an important governmental objective. Congresss stated interest in asserting moral disapproval of homosexuality cannot justify Section 3. BLAG does not contend otherwise. As the Court has explained, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice. Lawrence, 539 U.S. at 577 (citation omitted). Congresss asserted interest in defending the institution of traditional, heterosexual marriage (House Report 12) fails for similar reasons. E.g., United States v. Virginia, 518 U.S. 515, 535-536 (1996) (VMI). In any event, because Section 3 imposes no restriction on the ability of any state to provide for same-sex marriage, it does not substantially further any interest in preserving traditional, heterosexual marriage. Nor can DOMA be justified based on the interest in promoting responsible parenting and child-rearing that BLAG identifies as the principal societal justification for recognizing marriage. Even apart from the expert consensus that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents, Section 3
15 does nothing to promote responsible opposite-sex parenting or to prevent irresponsible same-sex parenting. Denying federal benefits to married same-sex couples creates no additional incentive for heterosexual couples to marry, procreate, or raise children together; nor does it disturb any state-conferred parental rights for same-sex couples. Congresss interest in protecting state sovereignty and democratic self-governance (House Report 12, 18) applies to Section 2, not Section 3, of DOMA. BLAG invokes a parallel sovereign interest in enabling the federal government to formulate its own definition of marriage for its own purposes. That asserted interest, however, simply begs the question in this case: whether the exercise of federal authority is consistent with equal protection. Section 3 also cannot be justified based on an interest in preserving government resources. Even assuming that Section 3 actually saves the government money (a dubious assertion), that would not suffice under heightened scrutiny. E.g., Plyler v. Doe, 457 U.S. 202, 227 (1982). The related interests in national uniformity and administrability with respect to federal benefits eligibility are not actual purposes expressed either in DOMA itself or the accompanying House Report, and therefore cannot be considered for purposes of heightened scrutiny. VMI, 518 U.S. at 535-536. Those interests also fail because the federal government ordinarily has given effect to marriages lawfully recognized under state law despite a number of inconsistencies among state marriage laws. Section 3 breaks from that established practice in a way that creates administrative difficulties, i.e., requiring the
16 federal government to determine whether a valid state marriage involves individuals of the same sex. Finally, the asserted interest in proceeding with caution pending state experimentation with the definition of marriage likewise lacks a basis in DOMA or the House Report. Section 3, at any rate, affects the institution of marriage, if at all, only at the margin (BLAG Br. 43). Section 3, moreover, is not framed as a temporary measure designed to facilitate further study. C. If the Court declines to apply heightened scrutiny to Section 3 of DOMA, the government does not challenge the constitutionality of Section 3 under the highly deferential standard of rational-basis review. Insofar as the Court were to apply a more searching form of rational basis review (Lawrence, 539 U.S. at 580 (OConnor, J., concurring in judgment)) because of the unique nature of the classification at issue, however, Section 3 would fail that analysis for largely the same reasons that it fails heightened scrutiny.
ARGUMENT SECTION 3 OF DOMA VIOLATES EQUAL PROTECTION
The Constitutions guarantee of equal protection of the laws, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954), embodies a defining constitutional ideal that all persons similarly situated should be treated alike, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Section 3 of DOMA stands at odds with that fundamental principle: it allows states to define the category of similarly situated personsthose who are legally married under state lawbut it then denies federal benefits to legally married same-sex cou-
17 ples that are available to legally married opposite-sex couples. The present case vividly illustrates the character of this discrimination: Section 3 of DOMA required the federal government to deny plaintiff a $363,000 reduction in estate taxes solely because her marriage, although fully recognized as a matter of state law, was with another woman. The statute inflicts a vast array of similarly severe harms upon the tens of thousands of legally married same-sex couples in this country. A same-sex spouse of an active-duty military servicemember is excluded from certain housing, healthinsurance, and disability benefits that would be afforded to an opposite-sex spouse. A federal employee is denied leave under the Family and Medical Leave Act to care for a sick same-sex spouse, who is also ineligible for health-insurance coverage. A non-citizen same-sex spouse of a United States citizen cannot qualify as the citizen spouses immediate relative for purposes of obtaining lawful permanent residence, subjecting the non-citizen spouse to the possibility of removal (if in the United States) or continued separation (if abroad). A same-sex surviving spouse is denied certain Social Security and pension benefits that would be available to an opposite-sex spouse. And a same-sex spouse of a military veteran is ineligible to be buried alongside his or her spouse in a national cemetery (absent a discretionary designation of eligibility by the Secretary of Veterans Affairs), or to receive certain survivor benefits upon a veterans service-connected death. 38 U.S.C. 1310, 2402(a)(5) and (6); see also 38 U.S.C. 101(3) and (31) (defining spouse for Title 38 as a person of the opposite sex who is a wife or husband).
18 The question in this case is whether those results compelled by DOMA are consistent with equal protection. They are not.3
A. Classifications Based On Sexual Orientation Should Be Subject To Heightened Scrutiny
Legislation is generally presumed valid and sustained as long as the classification drawn by the statute is rationally related to a legitimate state interest. Cleburne, 473 U.S. at 440. When individuals in the group affected by a law have distinguishing characteristics relevant to interests the [government] has the authority to implement, courts will not closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. Id. at 441-442. But when legislation classifies on the basis of a factor that generally provides no sensible ground
BLAG asserts in a footnote (Br. 24 n.6) that [b]efore it can consider DOMAs constitutionality, this Court must resolve a threshold issue of Article III standing, in that plaintiff only has standing to challenge DOMA * * * if New York would have recognized her 2007 Ontario marriage certificate at the time of Thea Spyers death. As explained in our certiorari reply (at 3-4 & nn.1-2), however, both courts below concluded that New York recognized plaintiffs marriage at the relevant time (Supp. App. 5a-7a; id. at 31a (Straub, J., dissenting); Pet. App. 6a-8a)a conclusion entitled to controlling deference by this Court. See, e.g., Bishop v. Wood, 426 U.S. 341, 346 (1976). Notably, BLAG makes no affirmative argument for disturbing the Second Circuits and district courts common understanding of New York law, instead contending only that the issue is not free from doubt. In any event, because IRSs denial of plaintiffs tax-refund claim was based solely on Section 3 of DOMA, without questioning the validity of her marriage under either Ontario or New York law (see p. 4, supra), BLAGs objection in fact goes to the merits rather than to standing.
3
19 for differential treatmentsuch as race or gender equal protection imposes a greater burden on the government to justify the classification. Id. at 440441. Such suspect or quasi-suspect classifications are subject to heightened scrutiny, under which the government must show, at a minimum, that the classification drawn is substantially related to an important governmental objective. Clark v. Jeter, 486 U.S. 456, 461 (1988). That more stringent standard enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides a heightened measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. See, e.g., City of Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); United States v. Virginia, 518 U.S. 515, 533 (1996) ( VMI). This Court has yet to resolve the appropriate level of scrutiny for classifications based on sexual orientation. In Romer v. Evans, 517 U.S. 620 (1996), the Court held that the state law at issue, which repealed existingand prohibited futurelegal protections for gay and lesbian people, failed even rational-basis review under the Equal Protection Clause. Id. at 632. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court invalidated a state criminal ban on homosexual sodomy under the Due Process Clause of the Fourteenth Amendment because the law furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Id. at 578. The Court accordingly had no need in either case to decide whether heightened scrutiny applies for pur-
20 poses of equal-protection review of sexual-orientation classifications. Nor did the Court decide the question in its one-line summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), of an appeal as of right from a state supreme court decision denying a same-sex couple the right to marry under state law. See Supp. App. 7a-11a. As BLAG acknowledges (Br. 25-26), the Courts summary order unsurprisingly gives no indication that it considered, much less resolved, the applicable level of scrutiny. The Court has, however, established a set of factors that guide the determination of whether to apply heightened scrutiny to a classification that singles out a particular group: (1) whether the class in question has suffered a history of discrimination, e.g., Bowen v. Gilliard, 483 U.S. 587, 602 (1987); (2) whether the characteristic prompting the discrimination frequently bears no relation to ability to perform or contribute to society, Cleburne, 473 U.S. at 440-441 (quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion)); (3) whether the discrimination against members of the class is based on obvious, immutable, or distinguishing characteristics that define them as a discrete group, Gilliard, 483 U.S. at 602 (citation omitted); and (4) whether the class is a minority or politically powerless, ibid. The first two considerationsa history of discrimination and the distinguishing characteristics lack of relation to an individuals capabilitiesare at the core of the inquiry and are common to every class this Court has deemed suspect. That is fully understandable: those factors provide direct and powerful reasons to be suspicious of a classification. Though relevant, neither immutability nor political powerlessness is a
21 precondition or sufficient to warrant heightened scrutiny. See, e.g., Cleburne, 473 U.S. at 443 n.10 ([T]heres not much left of the immutability theory, is there?) (quoting John Hart Ely, Democracy and Distrust 150 (1980)); id. at 472 n.24 (Marshall, J., concurring in part and dissenting in part) (The political powerlessness of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.). At any rate, as the court of appeals correctly determined (Supp. App. 16a-23a), all four of the factors demonstrate that classifications based on sexual orientation should be subject to heightened scrutiny.4
The decisions of other courts of appeals concluding that rational-basis review applies to sexual-orientation classifications are flawed. Many of those courts relied in whole or in part on Bowers v. Hardwick, 478 U.S. 186 (1986), which this Court overruled in 2003. Lawrence, 539 U.S. at 578. They reasoned that [i]f homosexual conduct may constitutionally be criminalized, as Bowers held, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes. Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990); see Equality Found. v. City of Cincinnati, 54 F.3d 261, 266-267 & n.2 (6th Cir. 1995), vacated by, 518 U.S. 1001 (1996); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994) (en banc); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); see also Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996) (citing reasoning of prior appellate decisions based on Bowers), cert. denied, 522 U.S. 807 (1997); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.) (same), cert. denied, 519 U.S. 948 (1996).
22
1. Gay and lesbian people have been subject to a history of discrimination
Gay and lesbian people have suffered a significant history of discrimination in this country. No court to consider the question has concluded otherwise, and any other conclusion would be insupportable. Supp. App. 16a; see, e.g., Massachusetts v. United States Dept of Health & Human Servs., 682 F.3d 1, 11 (1st Cir. 2012) ([G]ays and lesbians have long been the subject of discrimination.), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) ([W]e do agree that homosexuals have suffered a history of discrimination.); Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989) (Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.), cert. denied, 494 U.S. 1004 (1990). Perhaps most stark is the history of criminal prohibitions on the sexual intimacy of gay and lesbian people: that history ranges from colonial laws ordering the death of any man [that] shall lie with mankind, as he lieth with womankind, Public Statute Laws of the State of Connecticut, 1808 tit. LXVI, ch. 1, 2, 294-295 & n.1 (enacted 1642; rev. 1750), to state laws that, until very recently, demean[ed] the[] existence of gay and lesbian people by making their private sexual conduct a crime, Lawrence, 539 U.S. at 578. [T]hat declaration in and of itself [wa]s an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. Id. at 575. The federal government, state and local governments, and private parties all have contributed to a
23 regrettable history of discrimination against gay and lesbian people in a variety of contexts: Employment: By the 1950s, based on Presidential and other directives, the federal government investigated its civilian employees for sexual perversion, i.e., homosexuality. Until 1975, [t]he regulations of the Civil Service Commission for many years ha[d] provided that * * * immoral or notoriously disgraceful conduct, which includes homosexuality or other types of sex perversion, are sufficient grounds for denying appointment to a Government position or for the removal of a person from the Federal service. Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280, S. Doc. No. 241, 81st Cong., 2d Sess. 8 (1950). Intrusive investigations by the FBI and other agencies forced thousands of federal employees out of their jobs based on the suspicion that they were gay or lesbian. See, e.g., id. at 6-8; Brad Sears et al., The Williams Institute, Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment, ch. 5 at 7, Sept. 2009, http://williamsinstitute.law.ucla.edu/ research/workplace/documenting-discriminationon-the-basis-of-sexual-orientation-and-genderidentity-in-state-employment. The same was true on the state and local government level, id. at 18-
24 34, and pervasive employment discrimination persists to this day in the private sector, id. at 8-9.5 Immigration: For decades, gay and lesbian noncitizens were categorically subject to exclusion from the United States on the ground that they were persons of constitutional psychopathic inferiority, mentally . . . defective, or sexually deviant. Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569, 571-572 (N.D. Cal. 1982) (quoting Act of Feb. 5, 1917, ch. 29, 3, 39 Stat. 875), see Boutilier v. INS, 387 U.S. 118, 120 (1967) (The legislative history of the [Immigration and Nationality] Act indicates beyond a shadow of a doubt that the Congress intended the phrase psychopathic personality to include homosexuals.). That exclusion remained in effect until June 1, 1991. Immigration Act of 1990, Pub. L. No. 101649, 104 Stat. 4978. Hate crimes: After racial minorities, gay and lesbian people are the most frequent victims of reported hate crimes. See FBI, Hate Crime Statistics 2011, http://www.fbi.gov/about-us/cjis/ucr/hatecrime/2011/tables/table-1 (hate crimes motivated by victims sexual orientation constituted second highest category reported with 1508 offenses or over 20% of total). From 2007 to 2011 (the latest year for which data has been reported), hate crimes motivated by sexual orientation increased 3%, even as hate crimes overall decreased 19%. Compare ibid.
Until September 2011, open military service by gay and lesbian people was prohibited first by regulation and then by statute, 10 U.S.C. 654.
25 with FBI, Hate Crime Statistics, 2007, http:// www2.fbi.gov/ucr/hc2007/table_01.htm. Child custody: States and localities have denied child custody and visitation rights to gay and lesbian parents based on their intimate relationships. See, e.g., Ex parte H.H., 830 So. 2d 21, 26 (Ala. 2002) (Moore, C.J., concurring) (concurring in denial of custody to lesbian mother on ground that [h]omosexual conduct is * * * abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of natures God * * * [and] an inherent evil against which children must be protected); Bowen v. Bowen, 688 So. 2d 1374, 1381 (Miss. 1997) (holding that trial court did not err in granting father custody based on public rumor that sons mother was involved in lesbian relationship); Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (noting that while a lesbian mother is not per se an unfit parent, [c]onduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth and that conduct is another important consideration in determining custody). Police enforcement: Liquor licensing laws were used to raid establishments patronized by gay and lesbian people long before the Stonewall riots of 1969. See William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 19461961, 24 Fla. St. U. L. Rev. 703, 761-766 (1997). Police similarly relied on laws prohibiting lewdness, vagrancy, and disorderly conduct to harass gay and lesbian people when congregating in public. See, e.g., Pryor v. Municipal Court, 599 P.2d 636, 644 (Cal. 1979); Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City,
26 1960-1980, 12 Colum. Hum. Rts. L. Rev. 159, 162164 (1980); Florida State Legislative Investigation Committee, Report: Homosexuality and Citizenship in Florida 14 (1964). Voter referenda: Efforts to combat discrimination have engendered significant political backlash, as evidenced by a series of successful state and local ballot initiatives, starting in the 1970s, repealing anti-discrimination protections for gay and lesbian people. See Robert Wintemute, Sexual Orientation and Human Rights 56 (1995) (From 1974 to 1993, at least 21 referendums were held on the sole question of whether an existing law or executive order prohibiting sexual orientation discrimination should be repealed or retained. In 15 of these 21 cases, a majority voted to repeal the law or executive order.). The voter initiatives at issue in Romer, supra, and Equality Foundation v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995), vacated by, 518 U.S. 1001 (1996), are two of a number of more recent examples. See also pp. 33-34, infra (discussing success of state ballot measures prohibiting marriage of same-sex couples). BLAG offers two responses to that welldocumented history of discrimination. First, BLAG observes (Br. 57) that gay and lesbian people, unlike certain other protected classes, have never been denied the right to vote. But this Court has never enumerated political disenfranchisement as a separate factor, let alone a requirement, for according heightened scrutiny, and it would make little sense to do so. Citizens born out of wedlock, for instance, have never been denied the right to vote, but the Court has treat-
27 ed them as a quasi-suspect class for equal-protection purposes. See Lalli v. Lalli, 439 U.S. 259, 265 (1978). Second, BLAG contends (Br. 57) that, unlike other protected classes, gay and lesbian people have not suffered discrimination for longer than history has been recorded. Of course, that is not the relevant inquiry; as the court of appeals noted (Supp. App. 17a), whether such discrimination existed in Babylon is neither here nor there. In any case, in addition to the colonial-era criminal prohibitions on homosexual conduct, BLAG concedes that gay and lesbian people have endured discrimination in this country since the 1920s. Any perceived shortage of evidence of overt or officially sanctioned discrimination before that time is likely attributable to the fact that gay and lesbian people, by and large, kept their sexual orientation hidden for fear of discrimination or persecution. In any event, given its breadth and depth, the undisputed twentieth-century discrimination has lasted long enough.
2. Sexual orientation bears no relation to ability to perform or contribute to society
A pivotal consideration distinguishing classifications that call for application of heightened scrutiny from classifications that do not is whether the characteristic in question generally bears on an individuals ability to participate in and contribute to society. Cleburne, 473 U.S. at 441 (quoting Mathews v. Lucas, 427 U.S. 495, 505 (1976)). When the characteristic is ordinarily one that the government may legitimately take into account, id. at 446, this Court declines to apply heightened scrutiny even if other factors would support its application. See id. at 442-447 (mental
28 disability); Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312-315 (1976) (per curiam) (age). Conversely, what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Frontiero, 411 U.S. at 686 (plurality opinion). The same is true of sexual orientation. Historically, discrimination against gay and lesbian people had nothing to do with ability or performance, but rested instead on the view that they are, for example, sexual deviants, mentally ill, or immoral. See pp. 22-27, supra. As the American Psychiatric Association concluded some forty years ago, however, homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities. American Psychiatric Assn, Position Statement on Homosexuality and Civil Rights (1973), reprinted in 131 Am. J. Psychiatry 497 (1974). Like gender, race, or religion, sexual orientation bears no inherent relation to a persons ability to participate in or contribute to society. That fact is evident throughout all aspects of society, including military service. [V]alor and sacrifice are no more limited by sexual orientation than they are by race or by gender or by religion or by creed, and gay and lesbian Americans have served with honor to protect this nation and the ideals for which it stands. Remarks by the President and Vice President at Signing of the Dont Ask, Dont Tell Repeal Act of 2010, Dec. 22, 2010, http://www.whitehouse.gov/ the-press-office/2010/12/22/remarks-president-andvice-president-signing-dont-ask-dont-tell-repeal-a.
29 Gay and lesbian people have made similar contributions beyond the military, even when they could not live openly with regard to their sexual orientation. Plaintiffs own pathbreaking career as a computer programmer, while she kept her long-term relationship with Spyer invisible, is but one example. J.A. 154, 156-157 (Am. Comp. 19, 27). BLAG cannot dispute any of this. Instead, BLAG would prefer to transform the inquiry into a markedly different, case-specific one (Br. 54): whether the classification turns on a characteristic relevant to the distinctions actually drawn, i.e., whether a married couple is of the opposite sex is relevant to the governments interests in recognizing marriage. This Court has never framed the inquiry in that way, and for good reason. As the court of appeals explained, this Courts decisions make clear that the relevance of the classification to the distinctions actually drawn by a particular law bear[s] upon whether the law withstands scrutiny (the second step of analysis) rather than upon the level of scrutiny to apply in the first place. Supp. App. 18a (citing Clark, 486 U.S. at 461). When the inquiry is properly framed, the answer is clear. Sexual orientationlike gender frequently bears no relation to ability to perform or contribute to society. Frontiero, 411 U.S. at 686 (plurality opinion).
3. Gay and lesbian people possess a distinguishing characteristic that defines them as a group
Sexual orientation is a sufficiently discernible characteristic to define a discrete minority group. BLAG (Br. 54-56) and its amici contend that sexual orientation is not necessarily fixed, suggesting that it may
30 change over time and vary along a spectrum. That contention is both irrelevant and incorrect. a. As the Courts precedents indicate, this factor is broader than immutability or obviousness; it asks whether there are obvious, immutable, or distinguishing characteristics that define * * * a discrete group. Gilliard, 483 U.S. at 602 (emphasis added; citation omitted); Lyng v. Castillo, 477 U.S. 635, 638 (1986). A classification may be constitutionally suspect even if it rests on a characteristic, such as illegitimacy or alienage, that is not readily visible or is subject to change. See Mathews, 427 U.S. at 504, 506 ([I]llegitimacy does not carry an obvious badge, as race or sex do.); Graham v. Richardson, 403 U.S. 365, 372 (1971) (alienage). As the court of appeals explained (Supp. App. 19a-20a), the salient question is whether the characteristic of the class calls down discrimination when it is manifest. Sexual orientation is such a distinguishing characteristic, and that is true even though so many gay and lesbian people have been forced for so long to hide their identities in order to avoid discrimination. As this Court has recognized, sexual orientation is a core aspect of human identity, and its expression is an integral part of human freedom. Lawrence, 539 U.S. at 562, 576-577; see also Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (Sexual orientation is fundamental to ones identity and gay and lesbian individuals should not be required to abandon it.). BLAG also contends (Br. 55) that sexual orientation differs from other suspect or quasi-suspect classes because it is defined by a propensity to engage in a certain kind of conduct. This Court has squarely
31 rejected such a status/conduct distinction. See Lawrence, 539 U.S. at 575 (When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.); id. at 583 (OConnor, J., concurring in judgment) (While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.); Christian Legal Socy v. Martinez, 130 S. Ct. 2971, 2990 (2010) (rejecting contention that the organization does not exclude individuals because of sexual orientation, but rather on the basis of a conjunction of conduct and the belief that the conduct is not wrong because the Courts decisions have declined to distinguish between status and conduct in this context); cf. Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, 270 (1993) (A tax on wearing yarmulkes is a tax on Jews.). b. In any event, the broad consensus in the scientific community is that, for the vast majority of people (gay and straight alike), sexual orientation is not a voluntary choice.6 There is likewise a medical consenSee, e.g., Gregory M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Poly 176, 186-188 (2010), http://www.springerlink.com/ content/k186244647272924/fulltext.pdf (in national survey of more than 650 self-identified lesbian, gay, and bisexual adults, 95% of gay men and 83% of lesbian women reported no choice at all or a small amount of choice when asked How much choice do you feel you had about [your self-described sexual orientation]?); Am. Psychological Assn et al. (APA) C.A. Amicus Br. 6-8 (Homosexuality is a normal expression of human sexuality, is generally not
6
32 sus that efforts to change an individuals sexual orientation are generally futile and potentially dangerous to an individuals well-being.7 Accordingly, sexual orientation readily constitutes an obvious, immutable, or distinguishing characteristic for purposes of equal-protection law.
4. Gay and lesbian people are minorities with limited political power
The final consideration is whether gay and lesbian people are a minority or politically powerless. Giliard, 483 U.S. at 602 (quoting Lyng, 477 U.S. at 638). They are both. It is undisputed that gay and lesbian
chosen, and is highly resistant to change.); see also HernandezMontiel, 225 F.3d at 1093 (Sexual orientation and sexual identity are immutable.); Watkins v. United States Army, 847 F.2d 1329, 1347-1348 (9th Cir. 1988) (Scientific proof aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation.), revd en banc, 875 F.3d 699 (9th Cir. 1989). 7 See, e.g., Am. Psychological Assn, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009), http://www.apa. org/pi/lgbt/resources/therapeutic-response.pdf ([E]fforts to change sexual orientation are unlikely to be successful and involve some risk of harm.); see also Richard A. Posner, Sex and Reason 101 n.35 (1992) (describing failure of treatment strategies * * * to alter homosexual orientation); Douglas C. Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221, 226 (1994) (describing lack of empirical support for conversion therapy). Every major mental health organization has adopted a policy statement cautioning against the use of so-called conversion or reparative therapies to change the sexual orientation of gay and lesbian people. Those policy statements are reproduced in a 2008 publication of the American Psychological Association, Just the Facts about Sexual Orientation and Youth, http://www.apa.org/pi/ lgbt/resources/just-the-facts.pdf.
33 people are a minority group, and, for much of the history of discrimination against them (see pp. 22-27, supra), they lacked any ability to protect themselves through the political process. To be sure, that has begun to change. But in critical respects that change has resulted from judicial enforcement of constitutional guarantees, e.g., Lawrence, supra, not political action. And efforts to combat discrimination against gay and lesbian individuals frequently have sparked successful voter referenda or legislative action scaling back protections. See p. 26, supra (noting numerous examples including referendum at issue in Romer). As one recent example, in May 2011, the Tennessee legislature repealed local ordinances prohibiting discrimination on the basis of sexual orientation and barred future enactment of such ordinances. Tenn. House Bill No. 600, Pub. Ch. No. 278, http://state.tn. us/sos/acts/107/pub/pc0278.pdf. The recent history of marriage initiatives confirms that gay and lesbian people continue to lack any consistent or widespread ability to attract the [favorable] attention of the lawmakers. Cleburne, 473 U.S. at 445. BLAG notes (Br. 52) that voters in three states (Maine, Maryland, and Washington) approved same-sex marriage this past Novembersomething that had never happened before at the ballot box. Focusing on this extremely recent progress, BLAG ignores the broader context, which overwhelmingly demonstrates the political challenges faced by the gay and lesbian minority. In 1996, at the time DOMA was enacted, only three states had laws expressly restricting marriage to opposite-sex couples. See Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265, 265-266 (2007). Today, 39
34 states have such laws, including voter-approved constitutional amendments in 30 states barring same-sex marriage.8 Only six states, by comparison, have conferred marriage rights to same-sex couples through the political process; the other three have through judicial decision.9 That is not a convincing record of political power rendering protection unnecessary.10 In any event, BLAG can find no justification in this Courts precedents for its assertion (Br. 54) that the
Two other states (New Mexico and Rhode Island) have no express constitutional or statutory ban on marriage for same-sex couples, but those state governments do not permit same-sex couples to marry there. Both states, as a matter of comity, do recognize validly entered out-of-state marriages of same-sex couples. 9 Connecticut (judicial decision), Iowa (judicial decision), Maine (ballot), Maryland (legislature, approved by ballot), Massachusetts (judicial decision), New Hampshire (legislature), New York (legislature), Vermont (legislature), and Washington (legislature, approved by ballot). 10 By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage. In re Marriage Cases, 183 P.3d 384, 419-420 (Cal. 2008). In November 2008, Californias voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples. (The constitutionality of Proposition 8 is now before this Court. Hollingsworth v. Perry, No. 12-144 (cert. granted Dec. 7, 2012).) In November 2010, Iowa voters recalled all three Iowa state supreme court justices up for reelection after that courts unanimous decision legalizing samesex marriage. A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times, Nov. 4, 2010, at A1. On May 8, 2012, North Carolina became the thirtieth state to amend its constitution to prohibit same-sex marriages. National Conference of State Legislatures, State Same-Sex Marriage Laws: Legislatures and Courts, http://www.ncsl.org/issues-research/human-services/samesex-marriage-laws.aspx (last updated Feb. 14, 2013).
8
35 political strength of gays and lesbians in the political process should be outcome determinative here. When the Court recognized in 1973 that gender-based classifications were subject to heightened scrutiny, Frontiero, 411 U.S. 682-688 (plurality opinion), women already had achieved major political victories, including a constitutional amendment granting them the right to vote and protection against employment discrimination under Title VII.11 See id. at 685-686 (plurality opinion) (It is true, of course, that the position of women in America has improved markedly in recent decades, but women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.). As Frontiero and the subsequent cases applying heightened scrutiny to gender-based classifications demonstrate, any limited measure of political progress achieved by gay and lesbian people in no way compels declining to apply heightened scrutiny. To the contrary, their status as a minority, and one with a relative lack of political power, reinforces the applicability of heightened scrutiny based on all of the relevant considerations. * * * * * This Court understandably has been reluctant to recognize new suspect (or quasi-suspect) classes. See Cleburne, 473 U.S. at 441-442, 445-446. The governNotably, Congress has enacted no similar laws to protect gay and lesbian people from employment discrimination, and most states provide no such protection either. See Teresa Welsh, Should Employers Be Able to Fire Someone for Being Gay?, U.S. News, May 14, 2012, http://www.usnews.com/opinion/articles/2012/ 05/14/should-employers-be-able-to-fire-someone-for-being-gay.
11
36 ment has not lightly concluded that the Courts decisions dictate that heightened scrutiny applies to classifications based on sexual orientation. This is the rare circumstance in which a faithful application of the Courts established criteria compels applying heightened scrutiny to an additional classification. While those criteria have appropriately and reliably proved, and will continue to prove, difficult to satisfy, none of the Courts reasons for rejecting heightened scrutiny for other classificationse.g., age,12 mental disability,13 kinship,14 and poverty15applies to sexual orientation. Rather, sexual orientation falls squarely in the limited category of classifications for which heightened scrutiny is designed.
B. Section 3 Of DOMA Fails Heightened Scrutiny
Because a classification based on sexual orientation calls for the application of heightened scrutiny, BLAG must establish that DOMA Section 3, at a minimum, is
Murgia, 427 U.S. at 313 (rejecting heightened review for classifications based on age because such persons have not experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities) (internal quotation marks omitted). 13 Cleburne, 473 U.S. at 442-443 (rejecting heightened review for mentally disabled persons because they have a reduced ability to cope with and function in the everyday world and [h]ow this large and diversified group is to be treated under the law is a difficult and often a technical matter). 14 Lyng, 477 U.S. at 638 (rejecting heightened review for kinship classification because it meets none of the four factors). 15 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (rejecting heightened review for classifications based on poverty because such a class would be too large, diverse, and amorphous).
12
37 substantially related to an important governmental objective. Clark, 486 U.S. at 461.16 And under heightened scrutiny, a statute must be defended by reference to the actual [governmental] purposes behind it, not different rationalizations. VMI, 518 U.S. at 535-536. A classification does not withstand heightened scrutiny when the alleged objective of the classification differs from the actual purpose. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982). The House Reportthe only congressional committee report on DOMAsets forth the specific governmental interests purportedly advanced by DOMA: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources. House Report 12. Other than a cursory footnote (Br. 57 n.10), BLAG makes no argument that any of those interests, or any of the other interests BLAG now asserts, could satisfy heightened scrutiny. See Supp.
BLAG states in passing, in a footnote (Br. 25 n.7), that [b]y its terms, DOMA does not classify based on a married couples sexual orientation. Whether or not DOMA by its terms classifies on the basis of sexual orientation, it is plainly a law that classifies based on sexual orientation. Congress left no doubt that the sole and overriding purpose of Section 3 was to exclude homosexual couples from the federal definition of marriage. House Report 2. Section 3 denies recognition of a class of marriage into which, as a practical matter, only gay and lesbian people enter. As discussed above, the Court has rejected such distinctions between the status and conduct of gay and lesbian people. See pp. 30-31, supra (citing Lawrence, Christian Legal Society, and Bray).
16
38 App. 24a (BLAGs counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny.) (citing C.A. Oral Arg. Tr. 16:2417:6; reproduced at Pl. Resp. in Supp. of Writ of Cert. Before J. App. a16). The following analysis of the proffered justifications for Section 3 demonstrates why any such argument would fail.
1. Morality
The House Report claims that DOMA upholds traditional notions of morality, but does so by condemning homosexuality and expressing disapproval of the intimate, loving and committed relationships of gay and lesbian people. E.g., House Report 15-16 (relying on moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality); id. at 16 (referring to a union that many people . . . think is immoral) (citation omitted); see also id. at 16 n.54, 33 (invoking holding of Bowers v. Hardwick, 478 U.S. 186, 196 (1986), that criminal prohibition served the purpose of expressing the presumed belief * * * that homosexual sodomy is immoral and unacceptable). The House Report also invokes an interest in extending legal preferences to heterosexual couples to promot[e] heterosexuality and discourage homosexuality. Id. at 15 n.53 (Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality.). BLAG makes no effort to defend Section 3 on the basis of this asserted interest, and for good reason. Moral opposition to homosexuality, though it may reflect deeply held personal views, is not a legitimate policy objective that can justify unequal treatment of
39 gay and lesbian people. See Lawrence, 539 U.S. at 577 ([T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)); id. at 582-583 (OConnor, J., concurring in judgment) (Moral disapproval of [gay and lesbian people], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.); see also Romer, 517 U.S. at 635 (noting that law cannot disfavor gay and lesbian people because of personal or religious objections to homosexuality). That is not to suggest that Section 3 of DOMA necessarily or universally resulted from hostile animus. Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). Disapproval may also be the product of longstanding traditions or sincerely held beliefs. Cf. Massachusetts, 682 F.3d at 16 ([M]any of our own traditions rest largely on belief and familiarity.). Still, while [p]rivate biases may be outside the reach of the law, * * * the law cannot, directly or indirectly, give them effect. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
2. Traditional Definition of Marriage
The House Report also articulated an interest in defending and nurturing the institution of traditional, heterosexual marriage. House Report 12-15; see also
40 BLAG Br. 43. Marriage is, of course, a vitally important institution, and one supported by the federal government through benefits and other programs that rely on marital status. An interest in preserving marriage as limited to heterosexual persons, however, does not justify Section 3. Tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles. See VMI, 518 U.S. at 535-536 (invalidating longstanding tradition of single-sex education at Virginia Military Institute); see also Lawrence, 539 U.S. at 577-578 ([N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)); Heller v. Doe, 509 U.S. 312, 326 (1993) (Ancient lineage of a legal concept does not give [a law] immunity from attack for lacking a rational basis.). In any event, Section 3 of DOMA cannot plausibly be thought to advance any interest in protecting traditional marriage limited to opposite-sex couples. States decide what marriages to recognize without any reference to DOMA. As the court of appeals reasoned, because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, preserve the institution of marriage as one between a man and a woman. Supp. App. 29a (citation omitted). Instead, Section 3 denies benefits to individuals, legally married under state law, on the basis of their sexual orientation. As a result, [t]his is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMAs treatment of same-sex couples and its asserted goal of strengthen-
41 ing the bonds and benefits to society of heterosexual marriage. Massachusetts, 682 F.3d at 15 (citation omitted). Even BLAG acknowledges (Br. 43) that the federal government does not have the same direct effect on the institution of marriage as the sovereigns that directly issue marriage certificates, and that any effect of a federal definition of marriage on the institution is only at the margin. Any such effects (if they exist at all) are so attenuated that they cannot be said to substantially further the interest in preserving tradition.
3. Procreation and child-rearing
The House Report identified responsible procreation and child-rearing not as a separate rationale for Section 3 of DOMA, but as a basis for Congresss general interest in defending the institution of traditional, heterosexual marriage. E.g., House Report 14 (Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.); see also BLAG Br. 44-49. Even accepting this blinkered understanding of the moral and emotional foundations of marriage, see Turner v. Safley, 482 U.S. 78, 95-96 (1987), Section 3 does not substantially further any such interest. First, no sound basis exists for concluding that same-sex couples who have committed to marriage are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social-welfare organizations have issued policy statements opposing restrictions on gay and lesbian parenting based on their
42 conclusions, supported by numerous scientific studies,17 that children raised by gay and lesbian parents are as well adjusted as children raised by heterosexual parents.18 Against this weight of expert authority, BLAG offers (Br. 48) only what it calls the [c]ommon sense notion that children benefit more from opposite-sex parents than from same-sex parents. That is (at best) uninformed speculation, and cannot satisfy heightened scrutiny. Consequently, even assuming Section 3 had the effect of encouraging opposite-sex parenting at the expense of same-sex parenting (but
The weight of the scientific literature strongly supports the view that same-sex parents are just as capable as opposite-sex parents. See, e.g., Timothy J. Biblarz & Judith Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Family 3 (2010), http://www.squareonemd.com/pdf/Does%20the%20Gender%20of% 20Parents%20Matter%202010.pdf; see also APA C.A. Amicus Br. 5-6, 15-23 (concluding, based on a rigorous review of the literature, that there is no scientific basis for concluding that gay and lesbian parents are any less fit or capable than heterosexual parents, or that their children are any less psychologically healthy and well adjusted). 18 See, e.g., Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, Feb. 2002, http://aappolicy. aappublications.org/cgi/content/full/pediatrics;109/2/339; Am. Psychological Assn, Sexual Orientation, Parents, & Children, July 2004, http://www.apa.org/about/governance/council/policy/ parenting.aspx; Am. Acad. of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement, 2009, http://www.aacap.org/cs/root/policy_statements/gay_lesbian_ transgender_and_bisexual_parents_policy_statement; Am. Med. Assn, AMA Policies on GLBT Issues, http://www.ama-assn.org/ ama/pub/about-ama/our-people/member-groups-sections/glbt -advisory-committee/ama-policy-regarding-sexualorientation.shtml; Child Welfare League of Am., Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/culture/glbtqposition.htm.
17
43 see pp. 43-44, infra), there would be no adequate interest in doing so. Second, any debate over the relative merits of same-sex parenting is beside the point: Section 3 neither promotes responsible opposite-sex parenting nor prevents irresponsible same-sex parenting. The legislative record contains no evidence that denying federal benefits to same-sex couples legally married under state law in any way serves to encourage responsible procreation or child-rearing, whether by opposite-sex or same-sex couples; and it is hard to imagine what such evidence would be. Congress did express the view that marriage plays an irreplaceable role in child-rearing. House Report 14. But it defies reason to suggest that Section 3 makes it any more likely that heterosexual individuals will marry or raise children together. See Supp. App. 29a (DOMA does not affect in any way these incentives for heterosexual couples.). Nor does it deprive gay and lesbian individuals married under state law of the ability to raise children. See Massachusetts, 682 F.3d at 14 (DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.). If anything, the denial of federal benefits otherwise accorded to married individuals undermines the efforts of same-sex couples to raise their children, hindering rather than advancing any interest in promoting child welfare. BLAG defends (Br. 44-47) the procreation/childrearing rationale primarily on the ground that the traditional definition of marriage rationally relates to the governments interest in addressing unplanned and unintended offspringa problem unique to
44 opposite-sex relationships. But Section 3 bears no relationship to that interest at all. If a state elects to limit marriage to opposite-sex couples because they alone present a risk of unintended offspring, Section 3 does not disturb that choice. Conversely, if a state elects to permit same-sex couples to marry, Section 3 does not preclude that choice either. Section 3 therefore does not further the end of providing a special institution at the state level to address unintended offspring. And Section 3 thus can bear no rational, let alone substantial, connection to any governmental interest in responsible parenting. See Supp. App. 30a (Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and childrearing.) (citing Massachusetts, 682 F.3d at 14-15; Pet. App. 18a-19a; Pedersen v. OPM, No. 3:10-cv-1750, 2012 WL 3113883, at *40-43 (D. Conn. July 31, 2012)).
4. Sovereign Choice
The House Report states an interest in protecting state sovereignty and democratic self-governance. As the House Reports discussion of that interest makes clear, Congress was concerned with protect[ing] the right of the people, acting through their state legislatures, to retain democratic control over the manner in which the States will define the institution of marriage. House Report 18 (emphasis added). But Congress sought to serve that interest through Section 2, not Section 3. See p. 2, supra; see also Massachusetts, 682 F.3d at 14 (interest in protecting state sovereign choices was not directed to section 3 but was concerned solely with section 2, which reserved a states power not to recognize same-sex marriages performed in other states). BLAG agrees (Br.
45 31), observing that Section 2 preserved each states ability to define marriage as it preferred. BLAG attempts to justify Section 3 based on a parallel federal sovereign interest (Br. 30-33), i.e., that the federal government has the same latitude as the states to define marriage for its own purposes. It is, of course, true that the federal government has an interest in defining marriage for purposes of federal law. That is why the government has vigorously (and successfully) defended against Tenth Amendment and Spending Clause challenges to Section 3. See Massachusetts, 682 F.3d at 12. But that authority cannot be exercised in a manner that runs afoul of equal protection. Just as the federal government could not invoke its federal sovereign interest in defining marriage to refuse to recognize a lawful state marriage between individuals of a different race (cf. Loving v. Virginia, 388 U.S. 1 (1967)), it cannot refuse to recognize a lawful state marriage between individuals of the same sexat least to the extent that exclusion would violate equal protection. BLAGs reliance on the federal interest in defining marriage for federal purposes thus does no more than beg the question presented by this case.
5. Federal fisc
The House Report also identifies preservation of scarce government resources as an interest underlying Section 3s denial of federal benefits to same-sex couples married under state law. House Report 18; see also BLAG Br. 37-41. Many of the rights and obligations affected by Section 3, such as spousal evidentiary privileges and nepotism rules, involve no expenditure of federal funds. In other cases, exclusion of state-recognized same-sex marriages costs the
46 government money by preserving eligibility for certain federal benefits (e.g., an individual who marries a higher-earning spouse might otherwise lose federal assistance). As the court of appeals concluded, DOMA transcends a legislative intent to conserve public resources, such that the law is not substantially related to the important government interest of protecting the fisc. Supp. App. 28a; see Romer, 517 U.S. at 635 (rejecting interest in conserving resources because breadth of the amendment is so far removed from that interest). Even assuming that DOMA Section 3 saves the government money overall,19 that interest cannot satisfy heightened scrutiny. The government may not single out a group for exclusion from a benefits program solely to conserve public resources. See, e.g., Plyler v. Doe, 457 U.S. 202, 227 (1982) ([A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.); Graham, 403 U.S. at 374-375 (rejecting interest in preserving the fiscal integrity of [governmental] programs through alienage-based exclusions) (citation omitted); Massachusetts, 682 F.3d at 14 (rejecting the preservation of scarce government resources as a basis for DOMA because where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme
But see Massachusetts, 682 F.3d at 14 & n.9 ([M]ore detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.) (citing Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, 2004, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/ doc5559/06-21-samesexmarriage.pdf).
19
47 Court precedent marks this as a reason undermining rather than bolstering the distinction).
6. Other Interests Asserted by BLAG
The actual purposes advanced for Section 3and hence the only purposes relevant in applying heightened scrutinyare those identified in the House Report and discussed above. But because BLAG essentially defends Section 3 only under a rational-basis standard, it offers two additional possible rationales: promoting national uniformity for purposes of federal benefits eligibility (Br. 33-37) and proceeding cautiously with a change in the definition of marriage (Br. 41-43). Those additional rationalizations, even if considered, would fail under heightened scrutiny.
a. Uniformity and administrability
BLAG contends that Section 3 can be justified based on interests in promoting national uniformity and administrability of federal benefits. Those related interests, articulated solely in floor statements of individual legislators,20 are not properly considered as justifications under heightened scrutiny. They fail application of such scrutiny in any event. i. Floor statements of individual legislators, without more, do not evidence the actual purposes of a law. The actual purposes of a statutory classification are most evident when set forth in the statute itself. See Zobel v. Williams, 457 U.S. 55, 61 n.7 (1982) (These purposes were enumerated in the first section of the Act * * * . Thus we need not speculate as to the objectives of the legislature.). When a
See BLAG Br. 8-9 (citing 142 Cong. Rec. 22,459 (1996) (Sen. Ashcroft); id. at 22,453 (Sen. Murkowski)).
20
48 statute lacks an express statement of its purposes, as with Section 3 of DOMA, this Court has supported looking to congressional committee reports. See, e.g., Garcia v. United States, 469 U.S. 70, 76 (1984) ([W]e have repeatedly stated that the authoritative source for finding the Legislatures intent lies in the Committee Reports on the bill, which represen[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.) (quoting Zuber v. Allen, 396 U.S. 168, 186 (1969) (bracket in original)); see also, e.g., Jimenez v. Weinberger, 417 U.S. 628, 634 & n.3 (1974) (citing Conference Committee Report for primary purpose of scheme challenged under heightened scrutiny); BLAG Br. 6-11 (assuming House Report sets forth congressional purposes). Statements of individual legislators, by contrast, generally shed little light on a statutory classifications actual purposes. In determining legislative intent, this Court has eschewed reliance on the passing comments of one Member of Congress and casual statements from the floor debates. Garcia, 469 U.S. at 76. Such comments and statements reflect at best the understanding of individual Congressmen, not that of Congress. Zuber, 396 U.S. at 186. For purposes of heightened scrutiny, therefore, BLAG cannot rely solely on floor statements to defend DOMA under a uniformity/administrability rationale. ii. That rationale fails in any event. While the federal government possesses the authority to set the terms of its own benefits and obligations (p. 45, supra), its longstanding traditional practice has been to recognize (with narrow, context-specific exceptions, see BLAG Br. 5 n.2) any marriage lawfully recognized
49 under state law. The federal government has consistently adhered to that practice in the face of inconsistencies among state marriage laws with respect to consanguinity, minimum-age, divorce, and other requirements and limitations concerning marriage. See Family Law Professors C.A. Amicus Br. 5-14. DOMA Section 3 sharply breaks from that established tradition of deference to state marriage laws, thereby trading one form of uniformity (consistent reliance on state marriage laws) for another (exclusion of a particular type of marriage, i.e., that between same-sex couples) without providing a sufficient justification for preferring one to the other. See Supp. App. 26a (Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.). The latter form of uniformity, moreover, creates its own administrative complications that make federal law less, not more, straightforward. For individuals from states that permit same-sex couples to marry, Section 3 places an administrative burden on government officials to look beyond a simple declaration of marriage or licensesomething many federal agencies had not typically done before DOMAto determine whether the marriage involves individuals of the same sex. See Golinski v. OPM, 824 F. Supp. 2d 968, 1001-1002 (N.D. Cal. 2012) (The passage of DOMA actually undermined administrative consistency by requiring that the federal government, for the first time, discern which state definitions of marriage are
50 entitled to federal recognition and which are not.). Congress gave no thought to that administrative burden relative to the potential burden associated with evaluating a change in domicile potentially affecting a same-sex couples marital status. Accordingly, even assuming the asserted interests in uniformity and administrability were sufficiently important, BLAG has not met its burden of showing that Section 3 substantially furthers those interests. Cf. Califano v. Goldfarb, 430 U.S. 199, 220 (1977) (Stevens, J., concurring in judgment) (administrative convenience was not the actual reason for the discrimination).
b. Proceeding with caution
BLAG contends (Br. 42) that Congress rationally could have concluded that any experimentation with [marriage] should proceed first at the state level. BLAG cites no law for the proposition that an interest in proceeding with caution is sufficiently important to justify denying a benefit to a suspect or quasisuspect class. Similar arguments could have been made with respect to racial integration and gender equality. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 528 (1963) (rejecting citys attempt to justify its further delay in conforming fully and at once to constitutional mandates by urging the need and wisdom of proceeding slowly and gradually in its desegregation efforts). In any event, BLAGs contention overlooks that DOMA operates only for purposes of determining federal benefits. As BLAG itself acknowledges (Br. 43), because DOMA takes state law as a given, the federal definition affects the institution of marriage, if at all, only at the margin. There is, moreover, nothing temporary or provisional about Section 3. It contains no sunset provision
51 and no provision for any further study of the issue. See Massachusetts, 682 F.3d at 15 ([T]he statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. The House Reports own argumentsmoral, prudential and fiscalmake clear that DOMA was not framed as a temporary measure.) (citations omitted). Section 3 thus does not substantially further any interest in proceeding cautiously pending further analysis or study.
C. The Government Does Not Challenge The Constitutionality Of DOMA Section 3 Under Deferential Rational-Basis Review, But Section 3 Would Fail A More Searching Form Of That Review
In the event the Court declines to apply heightened scrutiny, the question would be whether Section 3 satisfies rational-basis review. The Court generally applies rational-basis review in a highly deferential mannerfor example, when ordinary commercial transactions are at issue. Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (citation omitted); see, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-488 (1955). Under such review, the Court will uphold a legislative classification if it bears a rational relationship to some legitimate governmental purpose. Heller, 509 U.S. at 320. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, including post-hoc rationalizations that did not actually motivate its adoption. Ibid. (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). The statute generally must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classi-
52 fication, and a legislative choice * * * may be based on rational speculation unsupported by evidence or empirical data. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313-314, 315 (1993). The government has concluded that heightened scrutiny governs classifications based on sexual orientation and that DOMA Section 3 cannot be sustained under that standard. If the Court disagrees and applies rational-basis review, the government has previously defended Section 3 under rational-basis review, and does not challenge the constitutionality of Section 3 under that highly deferential standard. Some have understood a line of this Courts decisions, however, to apply rational-basis review with added focus in certain circumstances. In her opinion concurring in the judgment in Lawrence, in considering a law directed toward gay persons as a class, Justice OConnor stated that [w]hen 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. 539 U.S. at 580, 583 (citing Romer, supra; Cleburne, supra; United States Dept of Agric. v. Moreno, 413 U.S. 528 (1973)); see also, e.g., Massachusetts, 682 F.3d at 10 (Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications.) (citing Romer, supra; Cleburne, supra; Moreno, supra). In the governments view, those considerations are best taken into account through the established framework of heightened scrutiny. Insofar as this
53 Court were instead to apply rational-basis review with added focus, laws targeted at gay and lesbian people would be a particularly strong candidate for that approach. As explained, classifications based on sexual orientationunlike other classifications for which the Court has denied suspect or quasi-suspect status distinctively implicate each of the considerations this Court has identified for application of heightened scrutiny. To the extent sexual orientation may be considered to fall short in some dimension, the history of discrimination and the absence of relation to ones capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an unpopular group. Lawrence, 539 U.S. at 580 (OConnor, J., concurring in judgment). Section 3 would fail to satisfy any such analysis, largely for the reasons it fails heightened scrutiny. Like the law struck down in Romer, Section 3 is at once too narrow and too broad. Romer, 517 U.S. at 633. It imposes a broad and undifferentiated disability (id. at 632) on the same narrow class of people at issue in Romergay and lesbian peopleby denying effect to their state-recognized marital relationships across the entire spectrum of federal law. And the asserted rationales are sufficiently far removed from the effect of the lawparticularly given its breadththat they should not be credited as valid justifications. Id. at 635; see Massachusetts, 682 F.3d at 15 (We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA.).
54 * * * * * BLAG (Br. 58-59) makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendments guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.
CONCLUSION
For the foregoing reasons, the judgment of the court of appeals should be affirmed. Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General STUART F. DELERY Principal Deputy Assistant Attorney General SRI SRINIVASAN Deputy Solicitor General PRATIK A. SHAH Assistant to the Solicitor General MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT Attorneys
FEBRUARY 2013
APPENDIX
1. U.S. Const. Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * . 2. 28 U.S.C. 1738C (DOMA 2) provides:
Certain acts, records, and proceedings and the effect thereof
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 3. 1 U.S.C. 7 (DOMA 3) provides:
Definition of marriage and spouse
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.
(1a)
Exhibit 9
No. 12-307
Supreme Court of the United States

________________ UNITED STATES OF AMERICA, Petitioner, v. EDITH SCHLAIN WINDSOR
AND
In The
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Respondents. ________________ On Writ of Certiorari to the United States Court of Appeals for the Second Circuit ________________ BRIEF ON THE MERITS FOR RESPONDENT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES ________________
KERRY W. KIRCHER PAUL D. CLEMENT General Counsel Counsel of Record WILLIAM PITTARD H. CHRISTOPHER BARTOLOMUCCI Deputy General Counsel NICHOLAS J. NELSON CHRISTINE DAVENPORT MICHAEL H. MCGINLEY Senior Assistant Counsel BANCROFT PLLC TODD B. TATELMAN 1919 M Street, N.W. MARY BETH WALKER Suite 470 ELENI M. ROUMEL Washington, D.C. 20036 Assistant Counsels (202) 234-0090 OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com UNITED STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700 Counsel for Respondent
QUESTION PRESENTED Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.
ii PARTIES TO THE PROCEEDING The Bipartisan Legal Advisory Group of the United States House of Representatives intervened as a defendant in the district court and was an appellant and appellee in the court of appeals. * Edith Schlain Windsor was the plaintiff in the district court and an appellee in the court of appeals. The United States of America was a defendant in the district court and an appellant and appellee in the court of appeals.
The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980s (although the formulation of the groups name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it, like the institution it represents, functions on a majoritarian basis when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3s constitutionality in this and other cases.
iii TABLE OF CONTENTS QUESTION PRESENTED ......................................... i PARTIES TO THE PROCEEDING ........................... ii TABLE OF AUTHORITIES ..................................... vi OPINIONS BELOW................................................... 1 JURISDICTION ......................................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 1 STATEMENT OF THE CASE ................................... 2 A. The Defense of Marriage Act ....................... 2 B. The Justice Department Stops Defending DOMA and Starts Attacking It ................................................ 12 C. Ms. Windsors Challenge to DOMA........... 14 SUMMARY OF THE ARGUMENT ......................... 19 ARGUMENT ............................................................ 22 I. Rational Basis Review Applies To DOMA. ............................................................... 24
II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes ...................................... 28 A. DOMA Rationally Preserves Each Sovereigns Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition ................. 30
iv B. DOMA Ensures National Uniformity in Eligibility for Federal Benefits and Programs Based on Marital Status ............................................ 33 C. DOMA Preserves Past Legislative Judgments, Conserves Financial Resources, and Avoids Uncertain and Unpredictable Effects on the Federal Fisc ................................................ 37 D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States........... 41 E. The Federal Government Could Rationally Retain the Traditional Definition for the Same Reasons States Can Rationally Retain that Definition.................................................... 43 1. Providing a Stable Structure to Raise Unintended and Unplanned Offspring ........................... 44 Encouraging the Rearing of Children by Their Biological Parents ................................................. 47 Promoting Childrearing by Both a Mother and a Father......................... 48
2.
3.
III. The Longstanding List Of Suspect And Quasi-Suspect Classes Should Not Be Expanded To Include Sexual Orientation ........................................................ 49
v A. Gays and Lesbians Are Far from Politically Powerless .................................. 51 B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Governments Interests in Recognizing Marriage ................................ 54 C. Sexual Orientation Is Not an Immutable Characteristic ....................... 54 D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different ........................... 56 CONCLUSION ......................................................... 59 STATUTORY APPENDIX U.S. Const. amend. V ........................................ 1a Defense of Marriage Act, 3, 1 U.S.C. 7 ................................................. 2a Defense of Marriage Act, 2, 28 U.S.C. 1738C ...................................... 3a
vi TABLE OF AUTHORITIES Cases Page(s)
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) .............. 5, 38 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ............................. 5 Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ....................................... 29 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ..................................... 2 Baker v. Nelson, 409 U.S. 810 (1972) ..................................... 16, 25 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ................. 13, 51, 55 Bowen v. Owens, 476 U.S. 340 (1986) ........................................... 41 Bowers v. Hardwick, 478 U.S. 186 (1986) ........................................... 27 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ................. 13, 46, 54 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................... passim City of Dallas v. Stanglin, 490 U.S. 19 (1989) ............................................. 29 Clark v. Jeter, 486 U.S. 456 (1988) ........................................... 25 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ................................... 46
vii Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ............................... 13 Dandridge v. Williams, 397 U.S. 471 (1970) ........................................... 41 Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ............................. 13 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) .................................... 5 FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) ..........................28, 29, 30, 49 Frontiero v. Richardson, 411 U.S. 677 (1973) ........................................... 56 Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ........................ 14, 24 Helvering v. Davis, 301 U.S. 619 (1937) ........................................... 36 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) .............................. 2, 46 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................. 13, 51, 55 Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) ............................. 56 Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) .................................. 12 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) .......... 12 Jimenez v. Weinberger, 417 U.S. 628 (1974) ........................................... 24
viii Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ............................. 13 Johnson v. Robison, 415 U.S. 361 (1974) ........................................... 49 King v. Smith, 392 U.S. 309 (1968) ........................................... 45 Lawrence v. Texas, 539 U.S. 558 (2003) ............................... 27, 28, 57 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ........................................... 29 Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ........................... 13 Lyng v. Castillo, 477 U.S. 635 (1986) ........................................... 50 Mandel v. Bradley, 432 U.S. 173 (1977) ........................................... 26 Marsh v. Chambers, 463 U.S. 783 (1983) ........................................... 42 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ........................................... 50 Massachusetts v. U.S. Dept of HHS, 682 F.3d 1 (1st Cir. 2012) .......................... passim Mathews v. Diaz, 426 U.S. 67 (1976) ............................................. 29 Murphy v. Ramsey, 114 U.S. 15 (1885) ............................................. 10 Natl Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ....................................... 43 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ........................................... 42
ix Nguyen v. INS, 533 U.S. 53 (2001) ............................................. 47 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ............................. 13 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ......................... 13 Regan v. Time, Inc., 468 U.S. 641 (1984) ........................................... 23 Romer v. Evans, 517 U.S. 620 (1996) ..................................... 26, 27 Rostker v. Goldberg, 453 U.S. 57 (1981) ............................................. 23 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ............................................... 50 Santosky v. Kramer, 455 U.S. 745 (1982) ........................................... 47 Schweiker v. Wilson, 450 U.S. 221 (1981) ........................................... 29 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ............... 12 Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ......................... 3, 12 Smelt v. Cnty. of Orange, 549 U.S. 959 (2006) ............................................. 3 Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) ........................................... 47 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ............................... 13 U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973) ..................................... 23, 24
x U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ........................................... 37 United States v. Carolene Prods. Co., 304 U.S. 144 (1938) ........................................... 58 United States v. Five Gambling Devices, 346 U.S. 441 (1953) ........................................... 23 United States v. Turley, 352 U.S. 407 (1957) ........................................... 36 United States v. Virginia, 518 U.S. 515 (1996) ........................................... 48 Vance v. Bradley, 440 U.S. 93 (1979) ............................................. 28 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) ............................................... 30 Walters v. Natl Assn of Radiation Survivors, 473 U.S. 305 (1985) ........................................... 22 Washington v. Glucksberg, 521 U.S. 702 (1997) ........................................... 59 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)............. 12 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ................... 13, 55 Yarborough v. Yarborough, 290 U.S. 202 (1933) ........................................... 44 Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................... 44 Constitutional Provision U.S. Const. art. II, 3 .............................................. 12
xi Statutes & Regulations 5 U.S.C. 8101 ........................................................... 5 5 U.S.C. 8341(a)....................................................... 5 8 U.S.C. 1186a(b)(1) ................................................ 5 22 U.S.C. 4081 ......................................................... 3 26 U.S.C. 2(b)(2) ...................................................... 5 26 U.S.C. 6013(a)..................................................... 5 26 U.S.C. 7703(b)..................................................... 5 38 U.S.C. 101(31)..................................................... 5 42 U.S.C. 416 ........................................................... 5 42 U.S.C. 1382c(d)(2)............................................... 4 Dont Ask Dont Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. 654 note .......................................... 52 Revenue Act of 1921, 223(b), 42 Stat. 227 .............. 5 Presidential Mem., Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) ..................................................... 4 U.S. Dept of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995) ....................... 5 Other Authorities 142 Cong. Rec. 10468 (1996) (Sen. Nickles) ............ 34 142 Cong. Rec. 16969 (1996) (Rep. Canady) ............. 6 142 Cong. Rec. 17079 (1996) (Rep. Bryant) .............. 7 142 Cong. Rec. 17089 (1996) (Rep. Hyde) ................. 7 142 Cong. Rec. 17094 (1996) ...................................... 2
xii 142 Cong. Rec. 22262 (1996) (Sen. Lieberman) ............................................... 11 142 Cong. Rec. 22438 (1996) (Sen. Lott) ................... 7 142 Cong. Rec. 22440 (1996) (Sen. Nickles) .............. 7 142 Cong. Rec. 22443 (1996) (Sen. Gramm)........ 9, 39 142 Cong. Rec. 22446 (1996) (Sen. Byrd) ............ 6, 11 142 Cong. Rec. 22448 (1996) (Sen. Byrd) ............ 9, 39 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ........... 7 142 Cong. Rec. 22453 (1996) (Sen. Hatfield)............. 8 142 Cong. Rec. 22453 (1996) (Sen. Murkowski) ................................................ 8 142 Cong. Rec. 22454 (1996) (Sen. Burns) .............. 10 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) ...... 8, 34 142 Cong. Rec. 22463 (1996) (Sen. Bradley) ........... 10 142 Cong. Rec. 22467 (1996) ...................................... 2 Am. Psychological Assn, Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality, http://www.apa.org/topics/sexuality/ orientation.aspx/ ............................................... 56 Bara Vaida and Neil Munro, Interest Groups - Reversal of Fortunes, Natl J., Nov. 11, 2006 ....................................... 53
xiii Charles Mahtesian, A Record Number of Gay Candidates, POLITICO.com (Oct. 2, 2012), http://www.politico.com/blogs/charliemahtesian/2012/10/a-record-number-ofgay-candidates-137289.html............................. 52 Cong. Budget Office, The Potential Budgetary Impact of Recognizing SameSex Marriages (2004), http://www.cbo.gov/sites/default/files/ cbofiles/ftpdocs/55xx/doc5559/06-21samesexmarriage.pdf ........................................ 40 Council on Families in America, Marriage in America: A Report to the Nation (1995) ........... 10 Dan Eggen, The Influence Industry: SameSex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http://www.washingtonpost.com/ politics/same-sex-marriage-debatemany-of-obamas-top-fundraisers-aregay/2012/05/09/gIQASJYSDU_story. html ................................................................... 53 Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/firsttime-majority-americans-favor-legalgay-marriage.aspx............................................. 51 George Chauncey, Why Marriage?: The History Shaping Todays Debate Over Gay Equality (2004) ................................. 57 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............................. passim
xiv Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), http://www.hrc.org/pressreleases/entry/human-rights-campaignlauds-2008-election-results ............................... 53 Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief (2002), http://www.childtrends.org/files/ marriagerb602.pdf ............................................ 48 Letter from Andrew Fois, Asst. Atty Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............... 11 Letter from Andrew Fois, Asst. Atty Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............................... 11 Letter from Andrew Fois, Asst. Atty Gen., to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .......................... 11 Letter from Atty Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html ............................ 12, 13
xv Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Womens Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111 (2001) ..................... 56 Michael Falcone, Maine Vote Repeals Gay Marriage Law, POLITICO.com, (Nov. 4, 2009), http://www.politico.com/ news/stories/1109/29119.html .......................... 52 Michelle Garcia & Andrew Harmon, Obamas Power Gays, Advocate.com (Oct. 24, 2011), http://www.advocate.com/news/dailynews/2011/10/24/obamas-power-gays............... 53 Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http://www.glbtq.com/sfeatures/ interviewgchauncey.html ................................. 57 The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ...................... 7, 11 William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and Americas Children, 15 Future of Children 97 (2005), http://futureofchildren.org/futureof children/publications/docs/15_02_06.pdf .......... 42
OPINIONS BELOW The opinion of the Court of Appeals for the Second Circuit is reported at 699 F.3d 169, and reproduced in the Appendix to the Supplemental Brief for the United States (Supp. App.) at 1a. The opinion of the District Court on the merits is reported at 833 F. Supp. 2d 394, and reproduced in the Appendix to the Petition for a Writ of Certiorari Before Judgment (App.) at 1a. The district courts opinion on intervention is reported at 797 F. Supp. 2d 320, and reproduced in the Joint Appendix (JA) at JA 218. JURISDICTION The district courts judgment was entered on June 7, 2012. App. 23a. The Bipartisan Legal Advisory Group of the United States House of Representatives (the House) filed a notice of appeal on June 8, 2012. App. 27a-29a. The United States filed its own notice of appeal on June 14, 2012. App. 25a-26a. On September 11, 2011, while the case was pending in the court of appeals, the United States filed a petition for certiorari before judgment, invoking this Courts jurisdiction under 28 U.S.C. 1254(1) and 2101(e). The court of appeals rendered its judgment on October 18, 2012. Supp. App. 1a. On December 7, 2012, this Court granted the United States petition. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The provisions of the Fifth Amendment to the Constitution and Sections 2 and 3 of the Defense of Marriage Act are reproduced in the Appendix to this brief at 1a.
2 STATEMENT OF THE CASE A. The Defense of Marriage Act For more than two centuries after our Nations Founding, every state and the federal government defined marriage as the legal union of a woman and a man. Indeed, [u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). By 1996, however, a Hawaii Supreme Court decision had called that uniform approach into question. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (indicating that same-sex marriage licenses may have been required by Hawaiis constitution). The Baehr decision raised the novel question of whether one states redefinition of marriage should automatically extend to other states via full faith and credit principles or to the federal government when it came to federal programs linked to marriage. Congress addressed this question by passing the Defense of Marriage Act of 1996 (DOMA), which was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton. Massachusetts v. U.S. Dept of HHS, 682 F.3d 1, 6 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 & 12-15. DOMA passed in the House of Representatives by a vote of 342-67, see 142 Cong. Rec. 17094-95 (1996), and in the Senate by a vote of 85-14, see id. at 22467. In the Senate supporters included then-Senator Biden; then-Minority Leader
3 Daschle; current Majority Leader Reid; and current Judiciary Committee Chairman Leahy. In the House, Rep. Hoyer, the Current Minority Whip, supported DOMA. DOMA reflected Congress determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law. DOMA does not override or invalidate any sovereigns decision to modify the definition of marriage, but it does preserve that prerogative for each sovereign. Section 2 of DOMA allows each state to decide for itself whether to retain the traditional definition without having another jurisdictions decision imposed upon it via full faith and credit principles. And Section 3 preserves the federal governments ability to use the traditional definition of marriage for purposes of federal law and programs. It does so not by singling out any category of relationships for specific exclusion, but rather by clarifying what marriage means for purposes of federal law: It clarifies that, for purposes of federal law, marriage means the legal union of one man and one woman, and spouse means a person of the opposite sex who is a husband or wife. 1 U.S.C. 7. DOMA does not preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition. Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006). Thus, some federal statutes provide benefits for families, see, e.g., 22 U.S.C. 4081 (extending certain financial benefits to Foreign Service members and their families), and the President has interpreted that
4 term, which is not defined by DOMA, to include same-sex couples. See Presidential Mem., Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) (directing the Office of Personnel Management to clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as family members). DOMAs definitions apply for federal-law purposes only: DOMA does not bar or invalidate any statelaw marriage, but leaves states free to decide whether they will recognize same-sex marriages. DOMA simply asserts the federal governments right as a separate sovereign to provide its own definition for purposes of its own federal programs and funding. Historically, the federal government often has found it convenient to accept the marital determinations made by the several states (which for the most part have varied only in the particulars) for purposes of federal lawjust as the states typically recognize marriages licensed by other states for purposes of their own law. But Congress also has a long history, when it sees fit, of supplying its own definitions of marriage for various federal purposes. These longstanding federal definitions sometimes provide marital benefits to couples who a state may not recognize as married, 1 and sometimes decline to extend federal regulation or benefits to couples
See, e.g., 42 U.S.C. 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition).
1
5 despite a state-issued marriage certificate. 2 Similarly, even before DOMA was enacted, federallaw references to marriage employed the traditional definition, as Congress, the Executive Branch, and the courts have recognized. See, e.g., Revenue Act of 1921, 223(b), 42 Stat. 227 (permitting a husband and wife living together to file a joint tax return; cf. 26 U.S.C. 6013(a) (A husband and wife may make a single return jointly of income taxes)); 38 U.S.C. 101(31) (for purposes of veterans benefits, spouse means a person of the opposite sex); U.S. Dept of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of spouse that would have included same-sex relationships); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (Congress, as a matter of federal law, did not intend that a person of one sex could be a spouse to a person of the same sex for immigration law purposes), affd, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbias 1901 marriage statute, intended that
See, e.g., 5 U.S.C. 8101(6), (11), 8341(a)(1)(A)-(a)(2)(A) (federal employee-benefits statutes defining widow and widower restrictively); 8 U.S.C. 1186a(b)(1) (denying recognition to some state-law marriages in immigration law context); 26 U.S.C. 2(b)(2) (tax law provision deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); 26 U.S.C. 7703(b) (excluding some couples living apart from federal marriage definition for tax purposes); 42 U.S.C. 416 (defining spouse, wife, husband, widow, widower, and divorce, for socialsecurity purposes).
2
6 marriage is limited to opposite-sex couples). Congress explained that, in defining the terms marriage and spouse, Section 3 of DOMA merely restates the current understanding of what those terms mean for purposes of federal law. H.R. Rep. No. 104-664, at 30 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (House Rep.); see also id. at 10 ([I]t can be stated with certainty that none of the federal statutes or regulations that use the words marriage or spouse were thought by even a single Member of Congress to refer to same-sex couples.); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (Section 3 changes nothing; it simply reaffirms existing law.); id. at 22446 (Sen. Byrd) ([A]ll this bill does is reaffirm for purposes of Federal law what is already understood by everyone.). Congress emphasized that [t]he most important aspect of Section 3 is that it applies to federal law only and does not have any effect whatsoever on the manner in which any State might choose to define these words. House Rep. 30 (parenthetical omitted). Section 3 defines these two words only insofar as they are used in federal law. Id. Congress thus reaffirmed the federal governments ability to make its own decision regarding whether to recognize same-sex relationships as marriages, without having its hand forced by a minority of the states or forcing any state to follow the federal definition for purposes of its own state law. In addition, Congress wanted to preserve the right of each statelike the federal governmentto define marriage within its own sphere. DOMA Section 2 prevents a decision by one state to re-define marriage from trumping the decisions of other states
7 via full faith and credit principles. Section 3 similarly prevents such a state re-definition from being automatically picked up for federal-law purposes. See 142 Cong. Rec. 17079 (1996) (Rep. Bryant) (Certainly we should not allow one State, whether it be Hawaii or any other State, to, in effect, establish what the Federal law will be in regards to what a marriage is.); id. at 17089 (Rep. Hyde) ([A]s to defining marriage in the Federal code, who else should define it except this Congress, the Federal legislature.); The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. at 2 (1996) (Senate Hrg.) (Sen. Hatch) (DOMA ensures that each State can define for itself the concept of marriage and not be bound by decisions made by other States. [DOMA] also makes clear that no Federal law should be read to treat a same-sex union as a marriage.); id. at 41 (statement of Prof. Lynn Wardle) (Section 3 protects Congress authority to control federal laws, programs and agencies. It prevents the imposition of same-sex marriage upon federal law without the approval of Congress. That, too, protects our federalism.); 142 Cong. Rec. 22438 (1996) (Sen. Lott) (DOMA will ensure that each State can reach its own decision about this extremely controversial matter: The legal status of same-sex unions. [DOMA], likewise, ensures that for the purposes of Federal programs, marriages will be defined by Federal law.); id. at 22440 (Sen. Nickles) (Without DOMA, if Hawaii, or any other State, gives new meaning to the words marriage and spouse, reverberations may be felt throughout the Federal Code.); id. at 22452 (Sen. Mikulski) ([This bill] puts in the Federal law books
8 what has always been the definition of a marriage and allows each State to determine for itself what is considered a marriage under that States laws.); id. at 22453 (Sen. Hatfield) (The bill would restrict the effect of any state law that allows same-sex marriage to that state only.); id. (Sen. Murkowski) (By defining the term marriage, Congress is protecting the sovereignty of each State and avoiding the ramifications of the absence of a definition of marriage in Federal law.). Members of Congress also stressed that conflicting state definitions of marriage should not be permitted to create geographical disparities in the eligibility for federal benefits. As Senator Ashcroft stated, having a uniform federal definition of marriage is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently [and] people in different States would have different eligibility to receive Federal benefits, which would be inappropriate. 142 Cong. Rec. 22459 (1996). Federal benefits, he observed, should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in another State. Id. It would be irrational and inconsistent, he said, if citizens of one State [were given] higher benefits or different benefits than citizens of another State. Id. [I]t is entirely appropriate for us, as a Congress, to say that we want a Federal benefits structure that follows a uniform definition of marriage. Id.; see also id. at 22453 (Sen. Murkowski) (DOMA establishes uniformity in federal benefits, rights and privileges
9 for married persons.); id. at 22448 (Sen. Byrd) (Without a Federal definition every department and every agency of the Federal Government that administers public benefit programs would be left in the lurch.). Congress additionally noted that DOMA helped to preserve the public fisc and avoid the unpredictable effects of changing traditional federal definitions that governed eligibility for federal benefits and taxes. Government currently provides an array of material and other benefits to married couples, and those benefits impose certain fiscal obligations on the federal government. House Rep. 18. Congress believed that DOMA would preserve scarce government resources, surely a legitimate government purpose. Id. As Senator Gramm observed, without DOMA, state recognition of samesex marriage will create a whole group of new beneficiariesno one knows what the number would betens of thousands, hundreds of thousands, potentially morewho will be beneficiaries of newly created survivor benefits under Social Security, Federal retirement plans, and military retirement plans. [I]t will impose a whole new set of benefits and expenses which have not been planned or budgeted for under current law. 142 Cong. Rec. 22443 (1996). If the federal government were forced to recognize same-sex marriages, Sen. Byrd noted, it is [not] inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars, if not billions of Federal taxpayer dollars. Id. at 22448;
10 see also id. at 22454 (Sen. Burns) (Given the budget difficulties we are currently facing, it would be an understatement to say that this [federal recognition of same-sex marriages] could have an enormous financial impact on our country.). In retaining the traditional definition for federallaw purposes, Congress also emphasized [t]he enormous importance of [traditional] marriage for civilized society. House Rep. 13 (quoting Council on Families in America, Marriage in America: A Report to the Nation 10 (1995)). The House Report quoted approvingly from this Courts decision in Murphy v. Ramsey, which referred to the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization. House Rep. 12 (quoting 114 U.S. 15, 45 (1885)) (emphasis in House Rep.). Congress recognized that the institution of marriage has traditionally been defined in American law as the union of one man and one woman, and was cognizant of the need for caution in changing such an important institution. See House Rep. 3 ([T]he uniform and unbroken rule has been that only opposite-sex couples can marry.); 142 Cong. Rec. 22463 (1996) (Sen. Bradley) ([W]hen we contemplate giving state sanction to same-sex marriages, we need to proceed cautiously.). Congress further explained that the institution of marriage is a response to the unique social concerns surrounding the inherently procreative nature of heterosexual relationshipsspecifically, that society recognizes the institution of marriage and grants married persons preferred legal status
11 because it has a deep and abiding interest in encouraging responsible procreation and childrearing. House Rep. 12, 13. Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring. Congress sought to encourage the raising of such children by both their biological parents in a stable family structure. See 142 Cong. Rec. 22446 (Sen. Byrd); id. at 22262 (Sen. Lieberman) (DOMA affirms another basic American mainstream value, marriage as an institution between a man and a woman, the best institution to raise children in our society.). While Congress was considering DOMA, it requested the opinion of the Department of Justice on the bills constitutionality, and the Department three times reassured Congress that DOMA was constitutional. See Letters from Andrew Fois, Asst. Atty Gen., to Rep. Canady (May 29, 1996), reprinted in House Rep. 34; to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in Senate Hrg. 2. Congress also received and considered other expert advice and concluded that DOMA was plainly constitutional. House Rep. 33; see also Senate Hrg. 1, 2 (Sen. Hatch) (DOMA is a constitutional piece of legislation and a legitimate exercise of Congress power); id. at 2341 (testimony of Professor Wardle); id. at 44 n.1 (statement of Professor Cass Sunstein) (opining that DOMA Section 3 would be upheld as constitutional); id. at 56-59 (letter from Professor Michael McConnell).
12 B. The Justice Department Stops Defending DOMA and Starts Attacking It Following DOMAs enactment, the Department of Justice discharged its constitutional duty to take Care that the Laws be faithfully executed, U.S. Const. art. II, 3, and successfully defended Section 3 of DOMA against several constitutional challenges, prevailing in every case to reach final judgment. 3 The Department continued to defend DOMA during the first two years of the current Administration. In February 2011, however, the Administration abruptly reversed course and abdicated its duty to defend DOMAs constitutionality. See Letter from Atty Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (Holder Letter), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html. Attorney General Holder announced that he and President Obama were now of the view that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. Id. The Attorney General acknowledged that, in light of the respect appropriately due to a coequal branch of government, the Department has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be
See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), affd in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).
3
13 made in their defense. Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every federal court of appeals to have considered the issue by that point in time (eleven of the thirteen circuits) had applied rational basis review to sexual orientation classifications and that a reasonable argument for Section 3s constitutionality may be proffered under [the rational basis] standard. Id. 4 Although the Holder Letter had said only that the Department would cease defense of DOMA Section 3, the Department did not merely bow out of DOMA litigation. Instead, it affirmatively assailed DOMA in courtarguing that Section 3 violates equal protection and urging courts to render judgment in favor of plaintiffs challenging the law even in Circuits in which rational basis was binding circuit law. The Department even went so far as to accuse the Congress that enacted DOMAmany of whose Members still serveof being motivated by animus. Br. for United States 25, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012), ECF 120.
4
See, e.g., Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); BenShalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-574 (9th Cir. 1990); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).
14 In response to the Departments remarkable about face on DOMA, Massachusetts, 682 F.3d at 7, the House intervened as a party-defendant in more than a dozen cases (fifteen to date), around the country, in which one or more plaintiffs challenged the constitutionality of DOMA Section 3; the House did so to ensure that a duly-enacted federal statute would have an adequate constitutional defense. No court denied intervention. C. Ms. Windsors Challenge to DOMA Respondent Edith Schlain Windsor and another woman, Thea Clara Spyer, obtained a certificate of marriage from the province of Ontario, Canada in 2007. At that time, their home state of New York did not issue marriage licenses to same-sex couples. Ms. Spyer died in 2009, naming Ms. Windsor the executor and sole beneficiary of her estate. Nine months after Ms. Spyers passing, the New York Court of Appeals expressly reserved the question of whether New York law recognized foreign, same-sex marriage certificates. See Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009). New York did not itself begin issuing marriage licenses to same-sex couples until 2011. After paying more than $363,000 in federal estate taxes, Ms. Windsor, as executor, sought a refund on the theory that the estate was entitled to the marital deduction, even though both Ms. Windsor and Ms. Spyer continued to file individual income tax returns after obtaining an Ontario marriage certificate in 2007. Recognizing that federal law offers this deduction only when the beneficiary of the estate is a spouse within the meaning of federal tax law and
15 DOMA, Ms. Windsor claimed that the failure to extend this favorable treatment to her violated her equal protection rights. The IRS denied the refund, and Ms. Windsor filed this suit in her capacity as executor of the estate. Ms. Windsors constitutional challenge is premised on the notion that New York would have recognized the 2007 Canadian marriage certificate, even though New York did not issue marriage certificates to same-sex couples until after Ms. Spyers death. After the Justice Department abandoned DOMAs defense in early 2011, the district court sua sponte invited Congress to intervene in the litigation, and the House did so. The district court followed the First Circuits lead and invalidated DOMA under a variant of rational basis it labeled intensified scrutiny. 682 F.3d at 10. On appeal, the Second Circuit first found that the Department had appellate standing and then addressed Ms. Windsors standing. It recognized that, [a]t the time of Spyers death in 2009, New York did not yet license same-sex marriage itself and therefore decisive for standing in this case is whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions. Supp. App. 5a. The Second Circuit declined to certify this sensitive question of state law, reasoning that the New York Court of Appeals had signaled its disinclination to decide this very question in Godfrey. Supp. App. 6a. Instead, the panel predict[ed] that Windsors marriage would have been recognized under New York law at the time of Spyers death, based on three New York lower court rulings, two of which pre-dated Godfrey. App. 6a-7a.
16 On the merits, the panel majority recognized that this Courts decision in Baker v. Nelson, 409 U.S. 810 (1972), held that the use of the traditional definition of marriage for a states own regulation of marriage status did not violate equal protection. Supp. App. 3a. Yet the panel majority concluded that Baker does not control equal protection review of DOMA because DOMA is a federal law and there had been doctrinal changes in equal protection law since 1971. Supp. App. 8a, 10a. In its equal protection analysis, the panel majority explained that a party urging the absence of any rational basis takes up a heavy load and [t]hat would seem to be true in this casethe law was passed by overwhelming bipartisan majorities in both houses of Congress and the definition of marriage it affirms has been long-supported and encouraged. Supp. App. 12a-13a. Indeed, the panel majority did not dispute Judge Straubs conclusion that DOMA survives rational basis review. See Supp. App. 14a. It also declined to apply rational basis plus review, because this Court has not expressly sanctioned such modulation in the level of rational basis review. Supp. App. 13a. The panel majority ultimately determinedin conflict with eleven other circuitsthat heightened scrutiny applies to classifications based on sexual orientation. Supp. App. 15a. The panel majority acknowledged that homosexuals clearly have attained political successes over the years, but deemed that they cannot adequately protect themselves from the discriminatory wishes of the majoritarian public. Supp. App. 21a-23a. Finally, the panel majority concluded that Section
17 3 of DOMA could not survive heightened scrutiny. The Court recognized Congress concern with ensuring uniform eligibility for federal marital benefits, but found it suspicious that Congress would attempt to define the word marriage when it had traditionally deferred to the states. Supp. App. 24a-25a. It also recognized the budgetary concerns motivating DOMA, but held them insufficient to satisfy intermediate scrutiny. Supp. App. 26a-28a. The panel majority agree[d] that promotion of procreation can be an important government objective, but held that DOMA does not further that objective because it affected only federal benefits. Supp. App. 30a. Thus, although it acknowledged that same-sex marriage is unknown to history and tradition, the panel majority nonetheless invalidated DOMA. Supp. App. 29a-31a. Judge Straub dissented on the merits, noting that DOMA reflects the understanding of marriage throughout our nations history, and that, [i]f this understanding is to be changed, it is for the American people to do so. Supp. App. 31a-32a. Judge Straub found that this Courts decision in Baker resolved the essentially identical challenge we have here, because although Baker involved a state law, the equal protection component of the Fifth Amendment is identical to and coextensive with the Fourteenth Amendment guarantee. Supp. App. 32a, 45a. Even apart from Baker, Judge Straub concluded that routine respect for extant precedent requires the application of rational-basis review to sexualorientation classifications. Supp. App. 81a. He observed that this Court has warned the lower
18 courts to be wary of creating new suspect or quasisuspect classifications, that it has not itself recognized any such classifications in decades, and that this Court applied rational-basis review in Romer despite having the opportunity to apply heightened review. Supp. App. 33a, 78a, 81a. Applying rational basis review, Judge Straub found that DOMA centers on legitimate state interests that go beyond mere moral disapproval of an excluded group. Supp. App. 33a. He noted that DOMA promotes uniformity in federal marital benefits and does nothing to strip the status that states confer on couples they marry. Supp. App. 63a-64a. He concluded that it is rational for Congress to limit the national impact of state-level policy development and to take an approach that attempts to create uniformity across the states in matters governed by federal law. Supp. App. 67a68a, 69a. Judge Straub also noted that this Court has continued to view the biological link of parents to children as deserving of special recognition and protection. Supp. App. 71a. He therefore concluded that DOMA furthers the legitimate government interest in encouraging heterosexual relationships, with their unique tendency to produce unintended offspring, to be channeled into an institution designed to facilitate the raising of such offspring. Supp. App. 55a-62a. Judge Straub therefore concluded that [w]hether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is an issue for the American people and their elected
19 representatives to settle through the democratic process. Supp. App. 83a. He noted the robust political debate on this topic and expressed regret that striking down DOMA poisons the political well by interven[ing] in this robust debate only to cut it short. Id. SUMMARY OF THE ARGUMENT Although the passions that surround the issue of same-sex marriage undoubtedly run high, the issue before this Court is quite narrow. Assuming that states remain free either to recognize same-sex marriages or retain the traditional definition, the question here is whether the federal government retains the same latitude to choose a definition for federal-law purposes, or whether instead it must borrow state-law definitions as its own, recognizing same-sex marriages of U.S. citizens residing in Massachusetts (because Massachusetts does) but not same-sex relationships of U.S. citizens residing in Virginia (because Virginia does not). Bedrock principles of federalism make clear that the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes and has a unique interest in treating citizens across the nation the same. To be sure, the federal government also has the option of borrowing state-law definitions, as it did during the long period when the states uniformly employed the traditional definition. But in 1996 when it appeared that states soon would begin experimenting with changing the traditional definition, the federal government was under no obligation to follow suit. Congress could, and did, rationally decide to retain the traditional definition
20 as the uniform rule for federal-law purposes. Congress could, and someday may, adopt a different approach and either incorporate varying state approaches or uniformly extend rights to same-sex couples even in states that retain the traditional definition. But under our system of government those decisions are wisely left to Congress and the democratic process. In considering DOMAs constitutionality, the Court should apply rational basis review as it previously has done when considering classifications on the basis of sexual orientation. And under that deferential standard, there is little question that DOMA rationally furthers multiple legitimate government interests. In 1996, Congress confronted an unprecedented dynamic with at least one state on the verge of experimenting with a fundamental change to the traditional definition of marriage. In DOMA, Congress acted to ensure that no one states decision to adopt a new definition would dictate the result for other sovereigns either via full faith and credit principles or by federal law borrowing state definitions. In our federal system, there is certainly nothing irrational about allowing each sovereign including the federal governmentto make this important decision for itself. Indeed, the justly celebrated ability of states to act as laboratories of democracy necessarily assumes the ability of each sovereign to run its own experiments. And it was certainly rational for the federal government to retain the traditional definition as the governing definition for federal-law purposes. The federal government has a unique interest in ensuring that federal benefits and tax burdens are
21 distributed equally such that a same-sex couple in Virginia is treated no differently for federal-law purposes from one in Massachusetts. And if the federal government can rationally favor a uniform rule, it was eminently rational to choose the traditional definition, which was the uniform statelaw rule in 1996 and remains the majority approach today. That decision also was rational because it accurately reflected the intent of the prior Congresses that created the multitude of programs that tie benefits and burdens to the institution of marriage as traditionally understood. It also avoided the uncertain and unpredictable fiscal impact of expanding the class of federal beneficiaries in unintended ways. And wholly apart from these unique federal interests that fully justify DOMA, Congress could rationally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it: There is a unique relationship between marriage and procreation that stems from marriages origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring. There is nothing irrational about declining to extend marriage to same-sex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency. Congress likewise could rationally decide to foster relationships in which children are raised by both of their biological parents. Finally, the Second Circuit erred when it became the first court of appeals to treat sexual orientation
22 as a quasi-suspect class. Creating new suspect classes takes issues away from the democratic process, and this Court has wisely refrained from recognizing new suspect classes over the last four decades. Homosexuality would be a particularly anomalous place to eschew that reluctance, as gays and lesbians have substantial political power, which has grown exponentially with each election cycle. Nor do the other factors this Court has looked to support recognizing a new suspect class here. To the contrary, with an issue as divisive and fast-moving as same-sex marriage, the correct answer is to leave this issue to the democratic process. In that process, there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus. And the democratic process allows compromise and way-stations, whereas constitutionalizing an issue yields a one-size-fits-all-solution that tends to harden the views of those who lose out at the courthouse, rather than the ballot box. In the final analysis, the democratic process is at work on this issue; there is no sound reason to constitutionalize it. ARGUMENT As a statute duly enacted by Congress and signed by the President, DOMA is entitled to a strong presumption of validity. Judging the constitutionality of an Act of Congress is properly considered the gravest and most delicate duty that this Court is called upon to perform. Walters v. Natl Assn of Radiation Survivors, 473 U.S. 305, 319 (1985) (quotation marks omitted). The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. Rostker v. Goldberg, 453 U.S.
23 57, 64 (1981). Furthermore, [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Regan v. Time, Inc., 468 U.S. 641, 652 (1984). Therefore, [t]his Court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is constitutional. United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953) (plurality). And [t]he customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Acts constitutionality. Rostker, 453 U.S. at 64; see supra at 11. The deference owed to the coordinate branches of government is at its zenith when it comes to rational basis review. It is one thing to conclude that a coordinate branch has crossed one of the sometimes murky lines that delineate the protections of the Bill of Rights, but it is quite another thing for this Court to declare that the two coordinate branches of the national government have acted not just imprudently, but wholly without rational basis. For that reason, it is perhaps no surprise that this Court has on only one occasion (at most two) invalidated an Act of Congress while applying rational basis review. See U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973). 5 And even then, this Court invalidated only
5
Moreno is readily distinguishable. The classification there could not further the interests identified by the government because the vast majority of individuals excluded could easily rearrange their affairs to become eligible, while only the
24 a single obscure amendment added in conference. Id. at 534 n.6. Striking down as irrational a statute like DOMA that was debated in both chambers, viewed as constitutional by the Justice Department, passed by large bipartisan majorities and then signed into law by the President would be wholly unprecedented. 6 I. Rational Basis Review Applies To DOMA. Ms. Windsor and the Justice Department contend that Section 3 of DOMA classifies based on sexual orientation and that therefore heightened scrutiny applies. But this Court has never classified sexual
neediest people could not. See Moreno, 413 U.S. at 538. There are no analogous difficulties with DOMA. The only other even arguable example is Jimenez v. Weinberger, 417 U.S. 628 (1974), in which the Court found a classification based on illegitimacy invalid under any standard of review when the Court was in the process of recognizing illegitimacy as a quasisuspect classification. Before it can consider DOMAs constitutionality, this Court must resolve a threshold issue of Article III standing. New York law did not recognize same-sex marriage until after Ms. Spyers passing. Thus, Ms. Windsor only has standing to challenge DOMA and the denial of a marital exemption from the estate tax if New York would have recognized her 2007 Ontario marriage certificate at a time when New York did not itself issue marriage certificates to same-sex couples. See Supp. App. 5a (recognizing that this question is decisive for standing in this case). That question is not free from doubt; the New York Court of Appeals expressly reserved that statelaw question in its 2009 Godfrey decision, nine months after Ms. Spyers passing. See Godfrey, 920 N.E.2d at 337. Both courts below predicted that New York would have recognized the Ontario marriage certificate, which presumably does not obviate the need for this Court to assure itself of its Article III jurisdiction.
6
25 orientation as a suspect or quasi-suspect class, and indeed has gone out of its way to apply rational basis review. This Court should do the same here and apply rational basis review to DOMA. 7 Under this Courts equal protection cases, there are only three levels of scrutiny. Strict scrutiny is reserved for laws that classify based on race, alienage, or national origin. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Classifications based on sex or illegitimacy are quasi-suspect and receive intermediate scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988). All other classifications trigger only rational basis review. This Court has never considered sexual orientation to be a suspect or quasi-suspect classification and instead has repeatedly applied rational basis review to such classifications. This Court considered a classification similar to DOMA in Baker v. Nelson, 409 U.S. 810 (1972). The Baker Court rejected for want of a substantial federal question an equal protection challenge to Minnesotas statute defining marriage as a union between persons of the opposite sex. Baker, 409 U.S. at 810. Although the Courts summary disposition
By its terms, DOMA does not classify based on a married couples sexual orientation. Rather, DOMA classifies based on whether a marriage is (i) a legal union (ii) between two persons (iii) of the opposite sex. A marriage between a man and a woman would fall within DOMAs definition even if one or both spouses were homosexual. Similarly, the marriage of two men would fall outside the definition even if both were heterosexual. There is no question, however, that DOMA has a disproportionate impact on individuals with a homosexual orientation.
7
26 did not specify the level of scrutiny it applied, subsequent decisions, discussed in the paragraphs immediately below, make clear that the Court applied only rational basis review to the Minnesota statutes limitation of marriage to opposite-sex couples. Such a summary dismissal is, of course, a decision on the merits and, while it does not have the same force before this Court as a decision reached after plenary review, it carries precedential effect. Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); see also Massachusetts, 682 F.3d at 8 (Baker is precedent binding on lower courts and thus forecloses arguments that presume or rest on a constitutional right to same-sex marriage). This Court subsequently considered an equal protection challenge to a sexual orientation classification on plenary review and applied rational basis review. See Romer v. Evans, 517 U.S. 620 (1996). Romer involved a voter-enacted referendum in Colorado known as Amendment 2, which prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the named class of homosexual persons or gays and lesbians. Id. at 624. The Colorado Supreme Court applied strict scrutiny to invalidate Amendment 2. Id. at 625. Despite the Colorado Supreme Courts application of strict scrutiny, this Court reviewed Amendment 2 under the rational basis test, which applies when a law neither burdens a fundamental right nor targets a suspect class. Id. at 631. Under that test,
27 legislation is upheld so long as it bears a rational relation to some legitimate end. Id. This Court held that Amendment 2 fails, indeed defies, even this conventional inquiry. Id. at 632 (emphasis added). See also id. at 635 (concluding that a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not. (citation omitted)). Thus, even in the face of the protestations of the dissent that it was applying something other than rational basis review, see id. at 651 (Scalia, J., dissenting), the Court made clear that it was applying conventional rational basis review, not any form of heightened scrutiny, to the sexual orientation classification before it in Romer. In Lawrence v. Texas, 539 U.S. 558 (2003), this Court once again declined to apply heightened scrutiny. Lawrence struck down a Texas statute that criminalized intimate sexual conduct between two persons of the same sex, while not reaching opposite-sex couples engaging in the same conduct. Rather than addressing that differential treatment under the Equal Protection Clause, the Court decided the case under the Due Process Clause and invalidated the Texas statute and overruled Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence Court emphasized the limited nature of that due process holding and specified that it was not holding that the government must give formal recognition to any relationship that homosexual persons seek to enter. 539 U.S. at 578. Justice OConnor preferred to decide the case under the Equal Protection Clause and, consistent with Romer, applied rational basis review. She explained that her analysis of the Texas law does
28 not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as preserving the traditional institution of marriage. Id. at 585 (OConnor, J., concurring in the judgment) (emphasis added). Although the court of appeals here applied heightened scrutiny to DOMA, the traditional factors this Court looks to in ascertaining the appropriate level of equal protection scrutiny do not support that conclusion. See Part III, infra. Rather, the proper result under this Courts precedents and the law of every other Circuit to consider the question is that rational basis review applies. As shown next, multiple rational bases support Congress decision to employ the traditional definition of marriage for federal-law purposes. II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes. Rational basis review is a paradigm of judicial restraint. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313-14 (1993). [T]he Constitution presumes that even improvident decisions will eventually be rectified by the democratic process. Cleburne, 473 U.S. at 440. Thus, judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Vance v. Bradley, 440 U.S. 93, 97 (1979). The judicial role is modest precisely because rational basis is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. City of Dallas v. Stanglin,
29 490 U.S. 19, 26 (1989). The statute enjoys a strong presumption of validity, and the challenger bears the burden to negative every conceivable basis which might support it without regard to whether the conceived reason for the challenged distinction actually motivated the legislature. Beach, 508 U.S. at 314-15 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)); see also Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080-81 (2012). As noted, deference is particularly strong when it comes to reviewing the work of the two coordinate political branches of the federal government. And deference is at its zenith when it comes to statutory definitions and other line-drawing exercises such as DOMA Section 3. This Court has recognized that in formulating definitions or establishing categories of beneficiaries, Congress had to draw the line somewhere, Beach, 508 U.S. at 316, which inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line. Mathews v. Diaz, 426 U.S. 67, 83 (1976); see Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (prescribing extra deference for statutory distinctions that inevitably involve[] the kind of line-drawing that will leave some comparably needy person outside the favored circle (footnote omitted)). The Court has applied this deferential approach not just to economic legislation, but also to benefits legislation, e.g., Schweiker, and even to government determinations of who or what constitutes a family, Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (upholding on rational basis review zoning regulation defining unmarried couples
30 as families permitted to live together, but prohibiting cohabitation by larger groups). In such cases, Congress decision where to draw the line is virtually unreviewable. Beach, 508 U.S. at 316. Applying this deferential review to DOMA, it is clear that Congress, when confronting the unprecedented phenomenon of states beginning to experiment with the traditional definition of marriage, had and maintains multiple rational bases to retain the traditional definition as the operative definition for purposes of federal law. A. DOMA Rationally Preserves Each Sovereigns Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition. When Congress enacted DOMA in 1996, it confronted a unique phenomenon. Up until that point, every state in the nation defined marriage in traditional terms as a union between a man and a woman. There was little doubt that when Congress used terms like marriage, married, and spouse in federal statutes, it too had the traditional definition in mind. But Congress did not even need to consider whether it preferred a uniform federal definition of marriage or instead preferred to defer to the states, because every state adopted the same, traditional approach. Only as that began to change did Congress consider DOMA. The Hawaii Supreme Courts decision in Baehr raised the prospect that some states would begin to experiment with the traditional definition and expand it to include same-sex couples. At least in
31 Hawaii, the impetus for this change came not from the democratic process, but from the state courts interpretation of the state constitution. And in our federalist system, the prospect that one state would alter the traditional definition raised the distinct prospect that one state could effectively change the law for other states via full faith and credit principlesand for the federal government to the extent federal law simply borrowed the states definition. DOMAs two operative provisions responded to this unprecedented dynamic in a manner that preserved each sovereigns ability to define marriage for itself. Section 2 preserved each states ability to define marriage as it preferred by ensuring that any one states definition would not trump another states judgment by operation of full faith and credit principles. In a similar fashion, Section 3 ensured that federal law would not simply borrow whatever definition or redefinition a state chose to adopt, but instead that the federal government would distinctively define marriage for federal-law purposes only and would retain the traditional definition. Congress approach in DOMA was a balanced one that fully reflects and respects our federalist system. Congress did not attempt to override any states decision to experiment with the definition of marriage or deem any particular redefinition of marriage irrational. But at the same time Congress recognized that states could rationally decide to expand the traditional definition of marriage to include same-sex couples, it also recognized that other jurisdictions, including the federal government
32 for uniquely federal purposes, could rationally decide to retain the traditional definition. DOMA permitted states to perform their role as laboratories of democracy, while at the same time ensuring that no one states experiment would be imposed on other states or on the federal government. DOMA thus reflects an interest in ensuring that, at a time of unprecedented reconsideration of the traditional definition of marriage, each sovereign in our federal system may decide this important issue for itself. That surely is a rationalindeed an important and vitalbasis for action in our system of dual federalism. And the federal governments decision to retain the traditional definition as its own also surely was a rational one. As shown in more detail below, at the time of DOMAs enactment every state retained the traditional definition and that remains the approach of the majority of the states. It plainly was rational for Congress to adopt the majority definition as its own, especially when that traditional definition was the underlying assumption of countless past federal legislative decisions, and when altering that definition would have unpredictable fiscal effects and would undermine uniquely federal interests in the uniformity of federal benefits and burdens. Further, Congress could rationally retain the traditional definition for all the reasons a state could rationally retain the traditional definition. While the federal definition of marriage does not have the same direct impact on the institution as a state decision, it has some effect. Assuming that states continue to have the flexibility to retain the
33 traditional definition, there is no reason why the federal government does not have the same latitude. B. DOMA Ensures National Uniformity in Eligibility for Federal Benefits and Programs Based on Marital Status. As long as all the states retained the traditional definition of marriage, there was no need for the Congress to choose between having a uniform federal definition for federal benefits and burdens and simply borrowing the state definition of marriage. But when Hawaii was on the verge of becoming the first state to experiment with altering the traditional definition, Congress had to choose between retaining a uniform federal rule or continuing simply to borrow state definitions in a manner that would create the possibility of disparities in federal benefits across jurisdictions. Congress chose the former, and that decision was eminently rational. In a nation where some states would recognize same-sex marriage and other states would not, Congress rationally could desire to maintain uniformity in the federal approach to this question, rather than adopting a patchwork of disparate statelaw rules. DOMA Section 3 accomplishes exactly that, ensuring that similarly-situated couples will have the same federal benefits regardless of the state in which they happen to reside. The uniform federal rule reaffirmed by DOMA also avoids a confusing situation in which same-sex couples would lose (or gain) federal marital status simply by moving between states with different policies on recognition of same-sex marriages. See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA will eliminate legal uncertainty concerning Federal
34 benefits); id. at 22459 (Sen. Ashcroft) (finding it very important to prevent people in different States [from having] different eligibility to receive Federal benefits). Likewise, a uniform federal rule also avoids the prospect that a federal employee military or civilianwould resist moving from one jurisdiction to another for fear it would affect his or her federal benefits or tax status. The adoption of a uniform federal rule also serves the governments rational interest in easing administrative burdens. While it may seem a simple matter to determine which jurisdictions have recognized same-sex marriage, this case illustrates that the issue is far more complicated. Ms. Windsors claim to a marital exemption from the estate tax does not turn on New Yorks very public adoption of laws permitting same-sex marriage in 2011 but, rather, on obscure, and as-yet not definitively settled, choice-of-law principles concerning New Yorks recognition of foreign marriage certificates in 2009. Ms. Windsor filed her claim here before New York recognized same-sex marriage, and her success depends on whether New York courts would have recognized a Canadian marriage certificate issued to a same-sex couple at a time when New York would not issue such a certificate itself. If her claim is successful, the federal government would have to confront similar choice-of-law questions in all the jurisdictions that retain the traditional definition. It was certainly rational for the federal government to prefer a uniform federal rule to the vagaries and difficulties of undertaking a multitude of such complex choiceof-law determinations.
35 When Hawaii threatened to break up the uniformity of the states definition of marriage, Congress essentially had two decisions to make. First, it had to decide between adopting a uniform federal rule or borrowing state definitions in a way that would produce a disparity in federal benefits. It was clearly rational for Congress, with its unique concern for treating citizens in Oklahoma the same as citizens in Hawaii, to choose the former. Second, once Congress decided to adopt a uniform rule, it had to decide whether to retain the traditional definition and the approach of all 50 states at the time, or to alter the traditional definition to include same-sex couples. While either choice would have been rational, adopting the overwhelming majority approach surely was a permissible option. By the same token, if at some future point all but a handful of jurisdictions recognize same-sex marriages, it would be entirely rational for Congress to change the law and adopt that majority approach as the uniform rule. In short, the rationality of the federal government interest in uniformity is independent of the rule adopted. Despite the rationality of preferring a uniform federal rule and adopting the majority approach as the federal rule, the courts below regarded Congress interest in a uniform federal-law definition of marriage as at best suspicious, Supp. App. 24a, and at worst an illegitimate intrusion into state authority over marriage, Supp. App. 25a-26a. But such suspicions ignore both the unprecedented situation Congress confronted and basic tenets of federalism. Suspicion of Congress adoption of a uniform definition seems to stem from Congress
36 traditional willingness to borrow state law definitions. But when state definitions of marriage vary only in the details, it is understandable and commendable for federal law to borrow those definitions. On the other hand, when a state is on the verge of making a fundamental change to the definition, that creates a need for Congress to choose between uniformity and borrowing (a need that simply did not exist before), and as demonstrated above, it is certainly rational to choose the former. The suggestion that states somehow have special constitutional authority to define what the words marriage and spouse mean for purposes of federal law runs entirely counter to our basic constitutional structure. Indeed, the presumption is the opposite. It is well established that, unless Congress plainly manifests an intent to incorporate diverse state laws into a federal statute, the meaning of [a] federal statute should not be dependent on state law. United States v. Turley, 352 U.S. 407, 411 (1957); see also Helvering v. Davis, 301 U.S. 619, 645 (1937) (When money is spent to promote the general welfare, the concept of welfare is shaped by Congress, not the states.); see also Massachusetts, 682 F.3d at 12 (Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.). The genius of the framers was in establishing two orders of government, each with its own direct
37 relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). Thus, when it comes to defining marriage for purposes of state law, the states may well enjoy constitutional power to make such determinations without federal interference. But DOMA does not interfere with or override state law, and Section 2 affirmatively promotes each states interest in deciding this important issue for itself. At the same time, nothing in our federalism prevents the federal sovereign from exercising its authority to independently determine the meaning of words in its own law. To be sure, Congress may choose to borrow state-law definitions as a matter of cooperative federalismand it historically has done so in many, but far from all, contexts with respect to marriage definitions. See supra at 4-6. But the notion that Congress is somehow constitutionally required to do sothat state law can reverse preempt contrary federal statutes in this area, and eliminate what otherwise would be the legitimate federal interest in uniform federal legal rules of nationwide applicabilityis wholly unprecedented and foreign to our constitutional tradition. C. DOMA Preserves Past Legislative Judgments, Conserves Financial Resources, and Avoids Uncertain and Unpredictable Effects on the Federal Fisc. Congress decision to retain the traditional federal definition as the uniform federal rule in 1996 was supported by a number of other rational bases that are uniquely federal in nature. First, retaining the
38 traditional definition preserved the legislative judgments of earlier Congresses. Congress recognized that whatever the future held for the definition of marriage, the multitude of federal statutes already on the books that used the terms marriage or spouse intended to incorporate the traditional definition of marriage. In some cases, that intent was explicit as statutes included references to husband and wife or other terms clearly incorporating the traditional definition. In other cases, the legislative judgment reflected the traditional definition implicitly, because the definition was uniformly applied. See, e.g., Adams, 486 F. Supp. at 1122 (The term marriage necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes. That is the way the term marriage is defined in every legal source that I have examined, starting with Blacks Law Dictionary.). But in every case, the Congress that enacted DOMA in 1996 knew that each of the existing references to marriage in the United States Code, many of which were the product of legislative compromise, reflected the traditional definition. Against that backdrop, it certainly was rational for Congress to preserve those past legislative judgments and expressly adopt the traditional definition as an accurate reflection of past Congresses intent when they used the defined terms in federal law. Congress retention of the traditional definition of marriage also rationally avoided uncertain and unpredictable (but presumed negative) effects on the federal fisc. In enacting DOMA, Congress recognized that a great many financial benefits from
39 the government turn on whether one is married for purposes of federal law. See House Rep. 18. In DOMA, Congress made the conscious decision not to expand the category of beneficiaries just because a state chose to expand its definition of marriage. See id. (stating that DOMA will preserve scarce government resources, surely a legitimate government purpose); 142 Cong. Rec. 22443 (1996) (Sen. Gramm) (DOMA prevents a new set of benefits and expenses which have not been planned or budgeted for under current law). Congress operated on the assumption that expanding the definition of marriage would have a substantial net negative effect on the federal fisc. See id. at 22448 (Sen. Byrd) (changing definition of marriage could cost federal government hundreds of millions of dollars, if not billions); see also supra at 9-10. The exact net effect is uncertain because although some benefits are extended exclusively to married couples, other laws operate as a marriage penalty or save the federal government funds if a marriage makes individuals ineligible for meanstested programs based on joint income. But Congress could rationally conclude that the net effect would be negative (if for no other reason than couples with a financial disincentive to do so might be less inclined to officially tie the knot), and in all events Congress could rationally decide to avoid a potentially large and uncertain effect that would have radically different impacts across federal agencies. See Massachusetts, 682 F.3d at 9 (explaining that under rational basis standard, challenge to DOMA cannot prevail because Congress could rationally have believed that DOMA
40 would reduce costs). 8 Since DOMA would preserve the status quo ante of providing federal benefits only to couples married under the traditional definition, Section 3 would avoid this uncertain and unpredictable effect. 9 This Court has recognized
Ms. Windsor disputes DOMAs cost savings, pointing to a Congressional Budget Office report published in 2004 (eight years after DOMAs enactment). See Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55 xx/doc5559/06-21-samesexmarriage.pdf. But the Second Circuit correctly concluded that it was Congress prerogative to find that DOMA will achieve a net benefit to the Treasury. App. 27a. The First Circuit likewise concluded that avoiding an uncertain impact on the federal fisc provides a rational basis for DOMA despite the CBO report. See Massachusetts, 682 F.3d at 9. Furthermore, the cursory ten-page CBO report which acknowledged that its estimates are highly uncertain (at 3)appears to make a critical analytical error: In claiming that many same-sex couples would become ineligible for federal means-tested benefits after their incomes were combined (as marriage would require), the report seemingly neglects to consider that many couples likely would avoid this financial hit simply by not marrying. Cf. id. (how many same-sex partners would marry if allowed is unknown).
8
The Second Circuit viewed DOMA not as preserving the status quo, but as a benefit withdrawal because it functionally eliminated longstanding federal recognition of all marriages that are properly ratified under state law. Supp. App. 27a. But that plainly is wrong because it ignores the state of the world in which Congress acted in 1996 in which the federal government had never extended a federal marital benefit to a same-sex couple. It also largely begs the question (and ignores Congress bipartisan judgment in DOMA) by assuming that Congress dominant intent had always been to borrow state law whatever its content rather than employ the traditional definition, notwithstanding the numerous federal statutes that by their terms apply only to opposite-sex couples, see supra at 4-6.
9
41 that when Congress declines to extend benefits to those not previously eligibleas it did in DOMA such actions are supported by the governments rational interest in proceeding cautiously and protecting the fisc. Bowen v. Owens, 476 U.S. 340, 348 (1986). [T]he Constitution does not empower this Court to second-guess officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Dandridge v. Williams, 397 U.S. 471, 487 (1970). And here, there is no denying that a redefinition of marriage by a substantial number of states would have a significant, if not entirely predictable, effect on the federal budget. Thus, it is not surprising that the First Circuit recognized that DOMA satisfies traditional rational basis review because Congress could rationally have believed that DOMA would reduce costs. Massachusetts, 682 F.3d at 9. D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States. In enacting DOMA and adopting the traditional definition as the uniform federal rule, Congress recognized that the institution of marriage as between a man and a woman is, to borrow this Courts words from another context, deeply embedded in the history and tradition of this country and has become part of the fabric of our society. Marsh v. Chambers, 463 U.S. 783, 786, 792 (1983). Congress rationally could have regarded any significant change in the definition of this bedrock
42 institution as having potentially significant consequences. Congress thus rationally could have concluded that any experimentation with such a longstanding institution should proceed first at the state level, while the federal government retains the traditional definition for its own purposes. See House Rep. 15. Virtually no society anywhere has had even a single generations worth of experience with treating same-sex relationships as marriages. There thus is ample room for a wide range of rational predictions about the likely effects of such recognitionon the institution of marriage, on society as a whole, and on distinctly federal interests. As two supporters of same-sex marriage put it, whether same-sex marriage would prove socially beneficial, socially harmful, or trivial is an empirical question . There are plausible arguments on all sides of the issue, and as yet there is no evidence sufficient to settle them. William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and Americas Children, 15 Future of Children 97, 110 (2005), http://futureofchildren.org/futureofchildren/publicati ons/docs/15_02_06.pdf (endorsing limited, localized experiment at state level). One of the great benefits of federalism is that it allows states to adopt novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 310 (1932) (Brandeis, J., dissenting). In light of the uncertainty about the consequences of changing such a long-established institution, it certainly was rational for Congress to decide to allow states to act as laboratories of democracy, while the federal government awaited the results of such state
43 experiments. E. The Federal Government Could Rationally Retain the Traditional Definition for the Same Reasons States Can Rationally Retain that Definition. Given its role in our federalist system, the federal government has unique interests in adopting the traditional definition as the uniform national rule for federal-law purposes. The national government has a distinct interest in treating citizens in different states similarly for federal-law purposes, without regard to the vagaries of states treatment of foreign judgments, and has a distinct interest in making a federal employee indifferent between working in Maryland or Virginia. But in addition to such uniquely national interests, Congress has the same reasons for retaining the traditional definition as the substantial majority of states that have done so. Although the federal government does not have the same direct effect on the institution of marriage as the sovereigns that directly issue marriage certificates, federal law and federal definitions can still effect such institutions at the margin. See Natl Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) ([T]he Federal Government [has] considerable influence even in areas where it cannot directly regulate.). Thus, the federal government can retain the traditional definition based on a rational belief that doing so will rationally further the institution of marriage in the long run. Indeed, the burden on the challengers to DOMA is to explain why, if states can rationally choose either to expand the traditional definition to include same-sex couples or retain the traditional definition, the federal
44 government cannot rationally make the same choice. 1. Providing a Stable Structure to Raise Unintended and Unplanned Offspring Many states have chosen to retain the traditional definition because of the intrinsic connection between marriage and children. In enacting DOMA, Congress recognized that, [s]imply put, government has an interest in marriage because it has an interest in children. House Rep. 13. Similarly, this Court has repeatedly recognized that marriages importance is derived from its intrinsic connection to procreation. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (1978) ([A] decision to marry and raise the child in a traditional family setting must receive [constitutional] protection.). The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society. See Yarborough v. Yarborough, 290 U.S. 202, 221 (1933) (In order that children may not become public charges, the duty of maintenance is one imposed primarily upon the parents); King v. Smith, 392 U.S. 309, 330 (1968) (biological parents have legal duties of support that government fills when abdicated). Particularly in an earlier era when employment opportunities for women were at best limited, the prospect that
45 unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society was a substantial government concern. Thus, the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the malefemale relationship. Specifically, the institution of marriage represents societys and governments attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent relationships, for the sake of their children, as well as society at large. It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring. Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not. While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning). Thus, the traditional definition of marriage remains societys rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their
46 other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children. Indeed, Congress recognized as much. See House Rep. 14 (Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.). Court decisions upholding traditional marriage laws on the state level have employed similar reasoning. See, e.g., Hernandez, 855 N.E.2d at 7 ([The Legislature] could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducementin the form of marriage and its attendant benefitsto opposite-sex couples who [marry]. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples.); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006) (upholding Nebraskas marriage law based a government interest in steering procreation into marriage; noting that the statute confer[s] the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot); Conaway v. Deane, 932 A.2d 571, 63031 (Md. 2007). DOMAs definition of marriage as between a woman and a man is rationaland constitutional because it is tailored to fit the social issue that the institution of marriage addresses. The equal protection guarantee is essentially a direction that
47 all persons similarly situated should be treated alike. Cleburne, 473 U.S. at 439. Opposite-sex couples and same-sex couples, whatever their other similarities, are not similarly situated with regard to their propensity to result in unplanned pregnancies. Principles of equal protection do not require Congress to ignore this reality. Nguyen v. INS, 533 U.S. 53, 66 (2001). 2. Encouraging the Rearing of Children by Their Biological Parents One of the strongest presumptions known to our culture and law is that a childs biological mother and father are the childs natural and most suitable guardians and caregivers, and that this family relationship should be encouraged. See Santosky v. Kramer, 455 U.S. 745, 760 n.11, 766 (1982); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843-47 (1977); Supp. App. 72a-73a & n.11. To be sure, our tradition offers the same protections for an adoptive parent-child relationship, once it is formed. But nonetheless when both biological parents want to raise their child, the law has long recognized a distinct preference for the child to be raised by those biological parents. Cf. Smith, 431 U.S. 816 at 823. And this bedrock assumption is grounded in common sense and human experience: Biological parents have a genetic stake in the success of their children that no one else does. See Kristin Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief 1-2 (2002), http://www.childtrends.org/files/marriagerb602.pdf. Of course, only relationships between opposite-sex
48 couples can result in children being raised by both of their biological parents. Therefore, when government offers special encouragement and support for relationships that can result in mothers and fathers jointly raising their biological children, it rationally furthers its legitimate interest in promoting this type of family structure in a way that extending similar regulation to other relationships would not. 3. Promoting Childrearing by Both a Mother and a Father Finally, biological differentiation in the roles of mothers and fathers makes it rational to encourage situations in which children have one of each. As this Court has recognized, the two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. United States v. Virginia, 518 U.S. 515, 533 (1996) (quotation marks omitted). Men and women are different. So are mothers and fathers. Common sense, and the experience of countless parents, informs us that children relate and often react differently to mothers and fathers. It is thus rational for governments to offer special encouragement for family structures in which these differing parental roles can complement each other. Moreover, the different challenges faced by boys and girls as they grow to adulthood make it at least rational to think that children benefit from having parental role models of both sexes. * * * The court of appeals concluded that reserving a special set of federal marital regulations and
49 incentives for opposite-sex couples has nothing to do with the government interests in procreation and childrearing, because extending the same regime to same-sex couples would not change the availability of benefits to opposite-sex couples. Supp. App. 29a30a. But that is not obviously correct in a world of limited resources and, in any event, is not the proper inquiry under rational basis review. In an equal protection challenge, a classification is rational if the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not. Johnson v. Robison, 415 U.S. 361, 383 (1974). Even if extending the definition of marriage to same-sex couples would not harm opposite-sex couples in the least, the question remains whether it was rational for Congress to draw the line where it did. And because the institution of marriage arose in large measure in response to a unique social difficulty that oppositesex couples, but not same-sex couples, posed, it was rational for Congress to draw the line where it did. III. The Longstanding List Of Suspect And Quasi-Suspect Classes Should Not Be Expanded To Include Sexual Orientation. While rational basis review is a paradigm of judicial restraint, Beach, 508 U.S. at 314, the recognition of quasi-suspect and suspect classes has the opposite effect. It extracts certain issues from the normal democratic process and limits the ability of states and the federal government to address those issues through their political branches. Accordingly, this Court has cautioned that the judiciary must be very reluctant to establish new suspect (or quasi-suspect) classes given our federal
50 system and our respect for the separation of powers. Cleburne, 473 U.S. at 441. In keeping with that admonition, this Court has not added to the short list of suspect or quasi-suspect classes in the last forty years, and indeed has rejected every proposed such class during that span, including mental disability, id. at 442-47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). This Court has had opportunities to declare sexual orientation a suspect class and has declined to do so. See Massachusetts, 682 F.3d at 9 (noting that this Court conspicuously failed to do so in Romera case that could readily have been disposed by such a demarche); App. 31a. The Second Circuits holding in this case that sexual orientation classifications are quasi-suspect is truly an outlierit is contrary to the thrust of this Courts decisions and directly conflicts with the decisions of eleven other circuits holding that such classifications are not subject to any heightened scrutiny. See supra at 13 n.4. This Court has identified four relevant factors in determining whether a class is suited for suspect or quasi-suspect treatment. None of these factors adequately supports adding sexual orientation to the list, and perhaps the most importantthe political power to participate in the democratic processtips decisively against making sexual orientation the first new suspect or quasi-suspect class in forty years.
51 A. Gays and Lesbians Politically Powerless. Are Far from
More than twenty years ago, the Seventh and Ninth Circuits recognized that homosexuals are not without growing political power, and that [a] political approach is open to them to pursue their objectives. Ben-Shalom, 881 F.2d at 466; accord High Tech Gays, 895 F.2d at 574. Whatever the limits of that conclusion two decades ago, there can be no serious doubt that the political power of gays and lesbians has increased exponentially since then. Today, same-sex marriage is supported by President Obama (who has called for DOMAs repeal), Vice President Biden (who voted for DOMA as a Senator in 1996 but has since changed his view), and the Senate majority leader, the House minority leader, and the Democratic Partys 2012 platform. One-third of the Members of the U.S. House of Representatives filed a brief in the court below attacking both the wisdom and constitutionality of DOMA. Polling indicates that by 2011, the proportion of Americans supporting same-sex marriage had increased from 27% to 53% in a span of only 16 years. See Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/ first-time-majority-americans-favor-legal-gaymarriage.aspx. The November 2012 elections witnessed a record number of openly gay candidates for Congress, and the election of the first openly gay U.S. Senator. Charles Mahtesian, A Record Number of Gay Candidates, POLITICO.com (Oct. 2, 2012), http://www.politico.com/blogs/charlie-
52 mahtesian/2012/10/a-record-number-of-gaycandidates-137289.html. In that same election cycle, voters in Maine, Maryland, and Washington state passed measures allowing same-sex marriage, and Minnesota voters defeated a proposed traditional marriage amendment to the state constitution. The Maine result demonstrates the capacity for the give and take of the political process to change voters minds, as the Maine referendum effectively reversed the result of a 2009 referendum. See Michael Falcone, Maine Vote Repeals Gay Marriage Law, POLITICO.com (Nov. 4, 2009), http://www.politico. com/news/stories/1109/29119.html. In all, nine states and the District of Columbia now permit same-sex marriage. Although the initial process of recognizing same-sex marriage was prompted by judicial decisions interpreting state constitutions (as Congress foresaw in 1996), more recent gains have come via legislatures and at the polls through referenda. Nor have the successes been limited to the marriage issue, as dramatically illustrated by the repeal of the militarys Dont Ask Dont Tell policy. See Dont Ask Dont Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. 654 note. Even more broadly, the Human Rights Campaign, one of the nations leading gay-rights organizations, has been ranked the second most successful political organization in the entire country by National Journal. Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), http://www.hrc.org/press-releases/entry/humanrights-campaign-lauds-2008-election-results (citing Bara Vaida and Neil Munro, Interest Groups -
53 Reversal of Fortunes, Natl J., Nov. 11, 2006). And gays and lesbians represent nearly 20% of President Obamas top fundraisers. Michelle Garcia & Andrew Harmon, Obamas Power Gays, Advocate.com (Oct. 24, 2011), http://www.advocate.com/news/dailynews/2011/10/24/obamas-power-gays; Dan Eggen, The Influence Industry: Same-Sex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http://www.washingtonpost.com/ politics/same-sex-marriage-debate-many-of-obamastop-fundraisers-are-gay/2012/05/09/gIQASJYSDU_ story.html. Last but not least, the decision of the President and Attorney General to stop defending and start attacking DOMA itself demonstrates the remarkable political clout of the same-sex marriage movement. As the Chief Judge of the Second Circuit remarked to the Departments representative at oral argument, your presence here is like an argument against your argument. Appendix to Response in Support of Writ of Certiorari Before Judgment, No. 12-307, 37a (Oct. 10, 2012). In short, gays and lesbians are one of the most influential, best-connected, best-funded, and bestorganized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as politically powerless would be wholly inconsistent with this Courts admonition that a class should not be regarded as suspect when the group has some ability to attract the attention of the lawmakers. Cleburne, 473 U.S. at 445. Gays and lesbians not only have the
54 attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. This Court has never definitively determined which of the four factors is necessary or sufficient, but given that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here. B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Governments Interests in Recognizing Marriage. This Court has also looked to the question whether a group has distinguishing characteristics relevant to the distinctions actually drawn. Whatever the relevance of homosexuality in any other context, the relevant distinguishing characteristic of same-sex couples is their propensity to engage in relationships that do not produce unplanned and unintended offspring. Citizens for Equal Prot., 455 F.3d at 86667 (quoting Cleburne, 445 U.S. at 441). And, as explained supra, the evolution of marriage as a response to the unique social concerns of the unintended and unplanned offspring of opposite-sex relationships makes this distinguishing characteristic of same-sex relationships highly relevant. Id. at 867; see supra at 44-47. C. Sexual Orientation Is Not an Immutable Characteristic. Sexual orientation differs in multiple dimensions from any previously recognized suspect or quasi-
55 suspect class. It is defined by a propensity to engage in a certain kind of conduct; the cause of that propensity is not well understood by science; sexual orientation is not determinable at birth; for at least some, sexual orientation is a fluid characteristic capable of changing over a persons lifetime; and the proposed class is difficult to define. As courts have recognized, homosexuality differs fundamentally from those [characteristics] defining any of the recognized suspect or quasi-suspect classes . The conduct or behavior of the members of a recognized suspect or quasi-suspect class has no relevance to the identification of those groups. Woodward, 871 F.2d at 1076; Ben-Shalom, 881 F.2d at 464; accord High Tech Gays, 895 F.2d at 573-74. There is no precedent for creating a suspect class that is based on the class propensity to engage in a certain kind of conduct. Not only is sexual orientation different from every recognized suspect class in that it is based on a propensity to engage in certain conduct, the cause of that propensity is not well understood. According to Ms. Windsors own expert, Dr. Letitia Peplau: Currently, the factors that cause an individual to become heterosexual, homosexual, or bisexual are not well understood. Many theories have been proposed but no single theory has gained prominence or is definitively established by scientific research. Today, most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors.
56 JA 500. Thus, while sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality), the same cannot be said of sexual orientation. For some persons, sexual orientation is fluid. And, as Dr. Peplau admits, a persons sexual orientation often cannot be readily categorized as heterosexual, homosexual, or perhaps bisexual. In fact, human experience often defies such clear-cut categories. Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Womens Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111, 113 (2001). Instead, according to the American Psychological Association, sexual orientations form a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. Am. Psychological Assn, Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality, http://www.apa.org/topics/sexuality/ orientation.aspx/. Finally, when considering homosexuality as a potential suspect class, the complexities involved merely in defining the term would prohibit a determination of suspect classification. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977) (declining to recognize transsexuals as a suspect class). D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different. Finally, each of the recognized suspect and quasisuspect classesracial minorities, aliens, women, and those born out of wedlockhave suffered
57 discrimination for longer than history has been recorded. In contrast, as this Court noted in Lawrence, there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. 539 U.S. at 568. Indeed, the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Id. As Ms. Windsors own expert, Dr. George Chauncey, has written, although antigay discrimination is popularly thought to have ancient roots, in fact it is a unique and relatively short-lived product of the twentieth century. George Chauncey, Why Marriage?: The History Shaping Todays Debate Over Gay Equality 14 (2004). According to Dr. Chauncey, [m]ost of the [discrimination] was put in place between the 1920s and 1950s, and most was dismantled between the 1960s and the 1990s. Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http://www.glbtq.com/sfeatures/ interviewgchauncey.html. More important, unlike racial minorities and women, homosexuals as a class have never been politically disenfranchisedthe kind of pervasive official discrimination that most clearly supports suspect class treatment by the courts. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 10
Although heightened scrutiny is clearly inappropriate, DOMA could survive even under that more demanding standard. In our federalist system, it is surely an important interest for each sovereign to be able to address an issue as divisive and fast-moving as same-sex marriage for itself.
10
58 * * * In sum, the traditional factors this Court has assessed in determining whether to recognize a new quasi-suspect or suspect class are absent when it comes to gays and lesbians. Perhaps most critically, gays and lesbians have substantial political power, and that power is growing. Victories at the ballot box that would have been unthinkable a decade ago have become routine. To be sure, those victories have not been uniform and have come first in blue states rather than red ones, but that is the nature of the political process. There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fastmoving as same-sex marriage. As Judge Straub observed, the definition of marriage is an issue for the American people and their elected representatives to settle through the democratic process. Supp. App. 83a. Indeed, the democratic process has substantial advantages over constitutionalizing this issue. Same-sex marriage is being actively debated in legislatures, in the press, and at every level of government and society across the country. That is how it should be. These fora require participants on both sides to persuade those who disagree, rather than labeling them irrational or bigoted. By contrast, courts can intervene in this robust debate only to cut it short, Supp. App. 83a, and only
DOMA is narrowly tailored to accomplish this important government interest by preventing one states decision from dictating the result for other states or the federal government.
59 by denouncing the positions of hundreds of Members of Congress who voted for DOMA, of the President who signed it, and of a vast swath of the American people as not just mistaken or antiquated, but as wholly irrational. That conclusion is plainly unwarranted as a matter of constitutional law, and judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves. This Court should permit[] this debate to continue, as it should in a democratic society. Washington v. Glucksberg, 521 U.S. 702, 735 (1997). CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be reversed.
60 Respectfully submitted, PAUL D. CLEMENT Counsel of Record H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON MICHAEL H. MCGINLEY BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com KERRY W. KIRCHER General Counsel WILLIAM PITTARD Deputy General Counsel CHRISTINE DAVENPORT Senior Assistant Counsel TODD B. TATELMAN MARY BETH WALKER ELENI M. ROUMEL Assistant Counsels OFFICE OF GENERAL COUNSEL UNITED STATES HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700 Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives January 22, 2013
Exhibit 10
No. 12-307
In The

UNITED STATES OF AMERICA, Petitioner, v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, ET AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION, THE AMERICAN ACADEMY OF PEDIATRICS, THE AMERICAN MEDICAL ASSOCIATION, THE AMERICAN PSYCHIATRIC ASSOCIATION, THE AMERICAN PSYCHOANALYTIC ASSOCIATION, THE CALIFORNIA MEDICAL ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS AND ITS NEW YORK CITY AND STATE CHAPTERS, AND THE NEW YORK STATE PSYCHOLOGICAL ASSOCIATION AS AMICI CURIAE ON THE MERITS IN SUPPORT OF AFFIRMANCE
NATHALIE F.P. GILFOYLE AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Street, N.E. Washington, DC 20002 WILLIAM F. SHEEHAN ANDREW HUDSON GOODWIN | PROCTER LLP 901 New York Avenue, N.W. Washington, D.C. 20001 (202) 346-4000 wsheehan@goodwinprocter.com PAUL M. SMITH JENNER & BLOCK LLP 1099 New York Avenue, N.W. Washington, DC 20001
Counsel of Record
Counsel for Amici Curiae
i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................... iii INTEREST OF AMICI CURIAE ............................. 1 INTRODUCTION AND SUMMARY ....................... 3 ARGUMENT ............................................................ 5 I. II. The Scientific Evidence Presented in This Brief. .................................................. 5 Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change .......................... 7 Sexual Orientation and Relationships ............................................... 11 The Children of Same-Sex Couples ............ 14 A. B. Many Same-Sex Couples Are Raising Children. ....................... 14 The Factors That Affect The Adjustment of Children Are Not Dependent on Parental Gender or Sexual Orientation ........................................ 14 There Is No Scientific Basis for Concluding That Gay And Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted. ............. 18
III. IV.
C.
ii V. Challenges to the Evidence on Same-Sex Parents by Other Amici Are Unfounded............................................. 27 A. The Methodological Criticisms Fail to Recognize the Cumulative Nature of Scientific Research ............................ 27 The Regnerus Study Does Not Provide Evidence That Parental Sexual Orientation Affects Child Development Outcomes ........................................... 29
B.
VI.
Denying Federal Recognition To Legally Married Same-Sex Couples Stigmatizes Them. ....................................... 34
CONCLUSION ....................................................... 37
iii TABLE OF AUTHORITIES CASES: PAGE(S)
Baker v. Wade, 106 F.R.D. 526
(N.D. Tex. 1985) ............................................24 (1984) .............................................................36
Heckler v. Mathews, 465 U.S. 728
STATUTES: 42 U.S.C. 402(g) ...............................................34 LEGISLATIVE HISTORY:
Defense of Marriage Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ................3, 4
142 Cong. Rec. H7444 (daily ed. July 11, 1996) ........................................................3
iv 142 Cong. Rec. H7486 (daily ed. July 12, 1996) .............................................................3 OTHER AUTHORITIES: D.W. Allen et al., Nontraditional
Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography (Nov. 18,
2012) (published online, DOI 10.1007/s13524-012-0169-x) .........................31
Am. Acad. of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Policy Statement:
Promoting the Well-Being of Children Whose Parents are Gay or Lesbian, 131 Pediatrics
(forthcoming 2013) ........................................25
Am. Assn for Marriage & Fam. Therapy, Reparative/Conversion Therapy (2009), available at http://www.aamft.org/iMIS15/AAM FT/MFT_Resources/Content/Resou rces/Position_On_Couples.aspx ....................10
v Am. Med. Assn, Policy H-60.940, Partner Co-Adoption, available at http://www.amaassn.org/ama/pub/about-ama/ourpeople/member-groupssections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.page ................................27 Am. Med. Assn, Policy H-65.973,
Health Care Disparities in SameSex Partner Households, available at http://www.ama-
assn.org/ama/pub/about-ama/ourpeople/member-groupssections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.page ................................35
Am. Med. Assn, Policy H-160.991,
Health Care Needs of the Homosexual Population, available at http://www.ama-
assn.org/ama/pub/about-ama/ourpeople/member-groupssections/glbt-advisorycommittee/ama-policy-regardingsexual-orientation.page ................................10
Am. Psychiatric Assn, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974) ...................................9
vi Am. Psychiatric Assn, Position Statement: Psychiatric Treatment and Sexual Orientation (1998),
available at
http://www.psych.org/Departments /EDU/Library/APAOfficialDocume ntsandRelated/PositionStatements /199820.aspx ..................................................10 Am. Psychiatric Assn, Position Statement: Support of Legal
Recognition of Same-Sex Civil Marriage (2005), available at
http://www.psych.org/Departments /EDU/Library/APAOfficialDocume ntsandRelated/PositionStatements /200502.aspx. .................................................2, 26
Am. Psychoanalytic Assn, Position Statement: Attempts to Change
Sexual Orientation, Gender Identity, or Gender Expression (2012), available at
http://www.apsa.org/about_apsaa/p osition_statements/attempts_to_ change_sexual_orientation.aspx ..................11
Am. Psychoanalytic Assn, Position Statement: Parenting (2012),
available at
http://www.apsa.org/about_apsaa/p osition_statements/parenting.aspx ..............26
vii Am. Psychol. Assn, Minutes of the
Annual Meeting of the Council of Representatives, 30 Am.
Psychologist 620 (1975) ................................9
Am. Psychol. Assn, Report of the
American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at
http://www.apa.org/pi/lgbt/resource s/sexual-orientation.aspx ..............................10
Am. Psychol. Assn, Resolution on
Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts (2009), available at
http://www.apa.org/pi/lgbt/resource s/sexual-orientation.aspx ..............................10
Marriage Equality For Same-Sex Couples (2011), available at
http://www.apa.org/about/governan ce/council/policy/same-sex.pdf ......................1
Sexual Orientation, Parents, and Children (2004), available at
http://www.apa.org/about/governan ce/council/policy/parenting.pdf .....................25
viii P.R. Amato, Children of Divorce in the
1990s: An Update of the Amato and Keith (1991) Meta-Analysis,
15 J. Fam. Psychol. 355 (2001) .....................17, 24
N. Anderssen et al., Outcomes for
Children with Lesbian or Gay Parents: A Review of Studies from 1978 to 2000, 43 Scand. J. Psychol.
335 (2002) ......................................................19
M.V.L. Badgett, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001) ......................36 K.F. Balsam et al., Three-Year Follow-
Up of Same-Sex Couples Who Had Civil Unions in Vermont, SameSex Couples Not in Civil Unions, and Heterosexual Married Couples, 44 Developmental
Psychol. 102 (2008) .......................................14
T.J. Biblarz & J. Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Fam. 3 (2010) ........................19, 21 H. Bos & T.G.M. Sandfort, Childrens
Gender Identity in Lesbian and Heterosexual Two-Parent Families, 62 Sex Roles 114 (2010) ................19, 22
ix R.W. Chan et al., Psychosocial
Adjustment Among Children Conceived Via Donor Insemination By Lesbian and Heterosexual Mothers, 69 Child Dev. 443 (1998) ...............17, 18 Mental Disorders, Psychological Distress, and Mental Services Use Among Lesbian, Gay, and Bisexual Adults in the United States, 71 J.
S.D. Cochran et al., Prevalence of
Consulting & Clinical Psychol. 53 (2003) .............................................................12-13
Consequences of Growing Up Poor (G.J. Duncan & J. Brooks-Gunn eds., 1997) ......................................................18 J. Crocker et al., Social Stigma, in 2 The Handbook of Social Psychology 504 (D.T. Gilbert et al. eds., 4th ed. 1998) ..............................................................35 E.M. Cummings et al., Childrens
Responses to Everyday Marital Conflict Tactics in the Home, 74
Child Dev. 1918 (2003) .................................17
E.M. Cummings et al., Everyday
Marital Conflict and Child Aggression, 32 J. Abnormal Child
Psychol. 191 (2004) .......................................17
x A.R. DAugelli et al., Lesbian and Gay
Youths Aspirations for Marriage and Raising Children, 1 J. LGBT
Issues Counseling 77 (2007) .........................12
A.R. DAugelli, Sexual Orientation, in 7 Am. Psychol. Assn, Encyclopedia of Psychology 260 (A.E. Kazdin ed., 2000) ..............................................................7 S. Erich et al., A Comparative
Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children,
1 J. GLBT Fam. Stud. 43 (2005)...................20
S. Erich et al., Gay and Lesbian
Adoptive Families: An Exploratory Study of Family Functioning, Adoptive Childs Behavior, and Familial Support Networks, 9 J.
Fam. Soc. Work 17 (2005) .............................20
R.H. Farr et al., Parenting and Child
Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied
Developmental Sci. 164 (2010) .............. 19, 20, 23
xi A.W. Fingerhut & L.A. Peplau, SameSex Romantic Relationships, in Handbook of Psychology and Sexual Orientation 165 (C.J. Patterson & A.R. DAugelli eds., 2013) ......................................................12 B.L. Frankowski, Sexual Orientation and Adolescents, 113 Pediatrics 1827 (2004) ....................................................11 M. Fulcher et al., Individual
Differences in Gender Development: Associations with Parental Sexual Orientation, Attitudes, and Division of Labor,
58 Sex Roles 330 (2008) ................................23
G.J. Gates et al., Letter to the editors and advisory editors of Social Science Research, 41 Soc. Sci. Res. 1350 (2012) ....................................................33 E. Goffman, Stigma: Notes on the Management of Spoiled Identity (1963) .............................................................35 A.E. Goldberg et al., Gender-Typed
Play Behavior in Early Childhood: Adopted Children with Lesbian, Gay, and Heterosexual Parents, 67 Sex Roles 503 (2012) .....................................23
xii A.E. Goldberg, Lesbian and Gay Parents and Their Children: Research on the Family Life Cycle (2010) ................................................ 19, 22, 23, 24 S. Golombok, Parenting: What Really Counts? (2000)...............................................15, 17 S. Golombok et al., Children with
Lesbian Parents: A Community Study, 39 Developmental Psychol.
20 (2003) ........................................................19, 24
S. Golombok & F. Tasker, Do Parents
Influence the Sexual Orientation of Their Children? Findings from a Longitudinal Study of Lesbian Families, 32 Developmental
Psychol. 3 (1996) ...........................................24
J.C. Gonsiorek, The Empirical Basis
for the Demise of the Illness Model of Homosexuality, in
Homosexuality: Research Implications for Public Policy 115 (J.C. Gonsiorek & J.D. Weinrich eds., 1991) ......................................................8
R. Green et al., Lesbian Mothers and
Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15
Archives Sexual Behav. 167 (1986) ..............23
xiii Henry J. Kaiser Fam. Found., Inside-
OUT: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Publics Views on Issues and Policies Related to Sexual Orientation 31 (2001), available at http://www.kff.org
/kaiserpolls/upload/New-Surveyson-Experiences-of-Lesbians-Gaysand-Bisexuals-and-the-Public-sViews-Related-to-SexualOrientation-Report.pdf. ................................12, 13
G. Herek et al., Demographic,
Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7
Sexuality Res. & Soc. Policy 176 (2010) .............................................................9, 12
G. Herek et al., Internalized Stigma
Among Sexual Minority Adults: Insights From a Social Psychological Perspective, 56 J.
Counseling Psychol. 32 (2009) ......................9
G.M. Herek, Bad Science in the
Service of Stigma: A Critique of the Cameron Groups Survey Studies, in Stigma and Sexual Orientation:
Understanding Prejudice Against Lesbians, Gay Men, and Bisexuals 223 (G.M. Herek ed., 1998) ...........................24
xiv G.M. Herek, Hate Crimes and Stigma-
Related Experiences Among Sexual Minority Adults in the United States: Prevalence Estimates from a National Probability Sample, 24 J.
Interpersonal Violence 54 (2009) .................35-36
G.M. Herek, Homosexuality, in 2 The Corsini Encyclopedia of Psychology 774-76 (I.B. Weiner & W.E. Craighead eds., 4th ed. 2010). ......................7 G.M. Herek et al., Psychological
Sequelae of Hate-Crime Victimization Among Lesbian, Gay, and Bisexual Adults, 67 J.
Consulting & Clinical Psychol. 945 (1999) .............................................................36
E. Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techs. 18 (1957) ...........................8 M.E. Hotvedt & J.B. Mandel, Children of Lesbian Mothers, in Homosexuality: Social, Psychological, and Biological Issues 275 (W. Paul et al. eds., 1982) ..............................................................23
xv Institute of Medicine, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011) ...................................7-8, 21 L.A. Kurdek, Are Gay and Lesbian
Cohabiting Couples Really Different from Heterosexual Married Couples?, 66 J. Marriage
& Fam. 880 (2004).........................................13
L.A. Kurdek, Change in Relationship
Quality for Partners from Lesbian, Gay Male, and Heterosexual Couples, 22 J. Fam. Psychol. 701
(2008) .............................................................13, 14
L.A. Kurdek, What Do We Know
About Gay and Lesbian Couples?,
14 Current Directions Psychol. Sci. 251 (2005) ......................................................13
M.E. Lamb, Mothers, Fathers,
Families, and Circumstances: Factors Affecting Childrens Adjustment, 16 Applied
Developmental Sci. 98 (2012) .......................16
xvi M.E. Lamb & C. Lewis, The Role of
Parent-Child Relationships in Child Development, in
Developmental Science: An Advanced Textbook 429-68 (M.H. Bornstein & M.E. Lamb eds., 5th ed. 2005) ........................................................15, 16
B.G. Link & J.C. Phelan,
Conceptualizing Stigma, 27 Ann. Rev. Soc. 363 (2001) ......................................35
L. Marks, Same-Sex Parenting and
Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41
Soc. Sci. Res. 735 (2012) ...............................29
S. McLanahan & G. Sandefur, Growing Up With a Single Parent: What Hurts, What Helps (1994) ..................17 T.C. Mills et al., Health-Related
Characteristics of Men Who Have Sex with Men: A Comparison of Those Living in Gay Ghettos with Those Living Elsewhere, 91
Am. J. Pub. Health 980 (2001) .....................12
Natl Assn of Soc. Workers, Policy Statement: Family Planning and Reproductive Choice, in Social Work Speaks 129 (9th ed. 2012) ...................26
xvii Natl Assn of Soc. Workers, Policy Statement: Lesbian, Gay, and Bisexual Issues, in Social Work Speaks 193 (4th ed. 1997) .............................26 Natl Assn of Soc. Workers, Position Statement: Reparative and
Conversion Therapies for Lesbians and Gay Men (2000), available at
http://www.naswdc.org/diversity/lg b/reparative.asp ............................................11
Neighborhood Poverty: Context and Consequences for Children (J. Brooks-Gunn et al. eds., 1997) ................18 C.J. Patterson, Children of Lesbian
and Gay Parents: Psychology, Law, and Policy, 64 Am. Psychologist
727 (2009) ......................................................19
C.J. Patterson, Family Lives of Lesbian and Gay Adults, in Handbook of Marriage and the Family 659 (G.W. Peterson & K.R. Bush eds., 3d ed. 2013) ...................... 19, 22, 23, 24 C.J. Patterson, Family Relationships of Lesbians and Gay Men, 62 J. Marriage & Fam. 1052 (2000) .............19
xviii C.J. Patterson, Gay Fathers, in The Role of the Father in Child Development 397 (M.E. Lamb ed., 4th ed. 2004) ..................................................20 C.J. Patterson, Lesbian and Gay
Parents and Their Children: A Social Science Perspective, in
Contemporary Perspectives on Lesbian, Gay, and Bisexual Identities, Nebraska Symposium on Motivation 141 (D.A. Hope ed., 2009) ....................................18
C.J. Patterson, & P.D. Hastings,
Socialization in the Context of Family Diversity, in Handbook of
Socialization: Theory and Research 328-51 (J.E. Grusec & P.D. Hastings eds., 2007) ................................. 15, 16, 18
L.A. Peplau & A.W. Fingerhut, The
Close Relationships of Lesbians and Gay Men, 58 Ann. Rev.
Psychol. 405 (2007) .......................................12, 13
L.A. Peplau & K.P. Beals, The Family Lives of Lesbians and Gay Men, in Handbook of Family Communication 233 (A.L. Vangelisti ed., 2004) .....................................14
xix L.A. Peplau & N. Ghavami, Gay,
Lesbian, and Bisexual Relationships, in Enclyclopedia of
Human Relationships (H.T. Reis & S. Sprecher eds., 2009) ..............................................................12, 13
E.C. Perrin & Comm. on Psychosocial Aspects of Child & Fam. Health,
Technical Report: Coparent or Second-Parent Adoption by SameSex Parents, 109 Pediatrics 341
(2002) .............................................................19, 22
D. Potter, Same-Sex Parent Families
and Childrens Academic Achievement, 74 J. Marriage &
Fam. 556 (2012) ................................. 17, 18, 22, 28
M. Regnerus, How Different are the
Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res.
752 (2012) ........................................... 29, 30, 32, 33
M. Regnerus, Parental Same-Sex
Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41
Soc. Sci. Res. 1367 (2012) .............................32
xx M. Regnerus, The New Family Structures Study, Survey Instrument, available at http://www.prc.utexas.edu/nfss/doc uments/NFSS-SurveyInstrument.pdf ..............................................32 B.F. Riess, Psychological Tests in Homosexuality, in Homosexual Behavior: A Modern Reappraisal 296 (J. Marmor ed., 1980) .............................8 I. Rivers et al., Victimization, Social
Support, and Psychosocial Functioning Among Children of Same-Sex and Opposite-Sex Couples in the United Kingdom, 44
Developmental Psychol. 127 (2008) .............19-20
G.I. Roisman et al., Adult Romantic
Relationships as Contexts for Human Development: A Multimethod Comparison of SameSex Couples with Opposite-Sex Dating, Engaged, and Married Dyads, 44 Developmental Psychol.
91 (2008) ........................................................13
M.J. Rosenfeld, Nontraditional
Families and Childhood Progress through School, 47 Demography
755 (2010) ........................................... 17, 18, 22, 28
xxi M.J. Rosenfeld, Reply to Allen et al., Demography (Nov. 18, 2012) (published online, DOI 10.1007/s13524-012-0170-4) .........................31 Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey,
available at
http://www.census.gov/hhes/sames ex/files/supp-table-AFF.xls. ..........................13, 14 S. Sarantakos, Children in Three
Contexts: Family, Education, and Social Development, 21 Child.
Australia 23 (1996) .......................................24
D.E. Sherkat, The Editorial Process
and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance, 41 Soc. Sci.
Res. 1346 (2012) ............................................33
J. Stacey & T.J. Biblarz, (How) Does
the Sexual Orientation of Parents Matter?, 66 Am. Soc. Rev. 159
(2001) ....................................................... 18, 19, 20
xxii E.L. Sutfin et al., How Lesbian and
Heterosexual Parents Convey Attitudes about Gender to their Children: The Role of Gendered Environments, 58 Sex Roles 501
(2008) .............................................................21, 23
C.J. Telingator & C.J. Patterson,
Children and Adolescents of Lesbian and Gay Parents, 47 J.
Am. Acad. Child & Adolescent Psychiatry 1364 (2008) .................................18
The Family Context of Parenting in Childrens Adaptation to Elementary School (P.A. Cowan et al. eds., 2005).................................................17 J.L. Wainright et al., Psychosocial
Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex Parents, 75 Child Dev. 1886 (2009)........ 18, 21, 28 Delinquency, Victimization, and Substance Use Among Adolescents With Female Same-Sex Parents,
J.L. Wainright & C.J. Patterson,
20 J. Fam. Psychol. 526 (2006) ............... 20, 27, 28
J.L. Wainright & C.J. Patterson, Peer
Relations Among Adolescents With Female Same-Sex Parents, 44
Developmental Psychol. 117 (2008) ....... 21, 27, 28
1 INTEREST OF AMICI CURIAE1 The American Psychological Association, the worlds largest professional association of psychologists, is a scientific and educational organization dedicated to increasing and disseminating psychological knowledge. The Association has adopted multiple research-based policy statements supporting the rights of gay and lesbian people, including a 2011 policy statement supporting full marriage equality and calling on the federal government to extend full recognition to legally married same-sex couples, and to accord them all of the rights, benefits, and responsibilities that it provides to legally married different-sex couples. Am. Psychol. Assn, Resolution on Marriage Equality For Same-Sex Couples (2011), available at http:// www.apa.org/about/policy/same-sex.pdf. The American Medical Association (AMA) is the largest professional association of physicians, residents, and medical students in the United States, substantially all of whom are represented in the AMAs policy making process. The objectives of the AMA are to promote the science and art of medicine and the betterment of public health. Its policies regarding gay and lesbian issues promote those objectives. The American Academy of Pediatrics (AAP) is the largest professional association of pediatricians in
1
No partys counsel authored this brief in whole or in part, and no party or a partys counsel nor any other person other than the Amici contributed money that was intended to fund preparing or submitting the brief.
2 the world, with over 62,000 members. Through education, research, advocacy, and the provision of expert advice, AAP seeks the optimal physical, mental, and social health and well-being for infants, children, adolescents, and young adults. The AAP supports marriage equality for all capable and consenting couples, including those who are of the same gender, as a means of guaranteeing all federal and state rights and benefits, and long term security for their children. The American Psychiatric Association is the Nations largest organization of physicians specializing in psychiatry. It joins this brief for the reasons expressed in its 2005 position statement, Departments/EDU/Library/ APAOfficialDocuments andRelated/PositionStatements/200502.aspx (In the interest of maintaining and promoting mental health, the American Psychiatric Association supports the legal recognition of same-sex marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities.). The American Psychoanalytic Association is the oldest and largest national psychoanalytic membership organization, with more than 3,500 members and associates. It believes that marriage is a basic human right and that same gender couples should be able to share equally in the rights and responsibilities of civil marriage. The California Medical Association (CMA) is a nonprofit association of approximately 37,000 California physicians working to promote the science and art of
Support of Legal Recognition of Same-Sex Civil Marriage, available at http://www.psych.org/
3 medicine, the care and well-being of patients, the protection of public health, and the betterment of the medical profession. Toward such ends, the CMA supports efforts to reduce health care disparities among members of same-sex households, including measures to afford such households equal rights and privileges to health care, health insurance, and survivor benefits. The National Association of Social Workers (NASW) is the largest association of professional social workers in the world, with nearly 140,000 members. NASW develops policy statements on issues of importance to the social work profession and, consistent with those statements, NASW and its New York State and New York City Chapters (also Amici herein) support full social and legal acceptance of lesbian, gay, and bisexual people. With more than 2500 members, the New York State Psychological Association seeks to advance the science and practice of psychology as a means of promoting human welfare by supporting excellence in education, training, research, advocacy, and service. All parties have consented to the filing of this brief. INTRODUCTION AND SUMMARY The floor debate on the Defense of Marriage Act (DOMA) evidences a generalized congressional disapproval of homosexuality. 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); id. at H7494 (statement of Rep. Smith) (immoral, depraved, unnatural, based on perversion, and an attack upon Gods
4 principles.). Other statements in the debate reflect a belief that permitting homosexuals to marry would harm the institution of marriage and be inimical to the welfare of children of same sex couples. For example, one Representative said that it is a fundamental, unavoidable fact of our human nature that heterosexual marriage is the ideal structure within which to raise children. Defense of Cong. 1 (1996) (statement of Rep. Canady, Chairman, H. Subcomm. on the Constitution). Another said that heterosexual marriage is uniquely capable of * * * nurturing children. Id. at 1-2. Another said that the bill will deter erosion of the family and the erosion of marriage because marriage is the bond that keeps the family together. Id. at 33 (statement of Rep. Sensenbrenner, Member, H. Comm. on the Judiciary). And yet another, quoting the Declaration of Independence, said that the bill reflects truths that are self-evident. Id. at 36 (statement of Rep. Inglis, Member, H. Subcomm. on the Constitution). These statements stand in sharp contrast to what scientific evidence shows about homosexuality, samesex couples, and their families. Scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that most gay, lesbian, and bisexual adults do not experience their sexual orientation as a choice; that gay and lesbian people form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; and that same-sex couples are no less fit than heterosexual parents to raise children and their children are no less psychologically healthy
Marriage Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th
5 and well-adjusted than children of heterosexual parents. In short, the claim that legal recognition of marriage for same-sex couples undermines the institution of marriage and harms their children is inconsistent with the scientific evidence. The body of research presented below demonstrates that discrimination by the federal government between married same-sex couples and married heterosexual couples in awarding benefits unfairly stigmatizes same-sex couples. The research also contravenes the stereotype-based rationales that were advanced to support passage of DOMA and that the Equal Protection component of the Due Process Clause was designed to prohibit. ARGUMENT I. The Scientific Evidence Presented in This Brief. Representing the leading associations of psychological, psychiatric, medical, and social work professionals, Amici have sought in this brief to present an accurate and responsible summary of the current state of scientific and professional knowledge concerning sexual orientation and families relevant to this case. In drawing conclusions, Amici rely on the best empirical research available, focusing on general patterns rather than any single study. Before citing a study herein, Amici have critically evaluated its methodology, including the reliability and validity of the measures and tests it employed, and the quality of its data-collection procedures and statistical analyses. Scientific research is a cumulative process and no empirical study is perfect in its design and execution.
6 Even well-executed studies may be limited in their implications and the generalizability of their findings.2 Accordingly, Amici base their conclusions as much as possible on general patterns rather than any single study. All scientific studies can be constructively criticized, and scientists continually try to identify ways to improve and refine their own work and that of their colleagues. Thus, many studies cited herein discuss their limitations and provide suggestions for further research. This is consistent with the
For example, to confidently describe the prevalence or frequency with which a phenomenon occurs in the population at large, it is necessary to collect data from a probability or representative sample. A probability sample consists of individuals selected from the study population through a process that gives each member of the population a calculable chance of being included. Nonprobability samples do not give all members of the study population a chance of being includedsuch as, for example, a study of voters that relies on volunteers who phone in to a telephone number advertised in a newspaper. Case studies and nonprobability samples can be used to document the existence of a phenomenon in the study population. For studies of groups that constitute a relatively small proportion of the population, obtaining a probability sample can be extremely expensive or otherwise not feasible. Consequently, researchers studying such groups may rely on nonprobability samples. If they wish to compare members of the smaller group with members of the majority group (e.g., lesbian mothers with heterosexual mothers), they may recruit nonprobability samples of both groups that are matched on relevant characteristics (e.g., educational level, age, income). Regardless of the sampling method used, greater confidence can be placed in findings that have been replicated by others using different samples.
7 scientific method and does not impeach the overall conclusions. Most of the studies and literature reviews cited herein have been peer-reviewed and published in reputable academic journals. In addition, other academic books, book chapters, and technical reports, which typically are not subject to the same peer-review standards as journal articles, are included when they report research employing rigorous methods, are authored by well-established researchers, and accurately reflect professional consensus about the current state of knowledge. Amici have made a good faith effort to include all relevant studies and have not excluded any study because of its findings. II. Homosexuality Is a Normal Expression of Human Sexuality, Is Generally Not Chosen, and Is Highly Resistant to Change. Sexual orientation refers to an enduring disposition to experience sexual, affectional, and/or romantic attractions to one or both sexes. It also encompasses an individuals sense of personal and social identity based on those attractions, on behaviors expressing those attractions, and on membership in a community of others who share those attractions and behaviors.3 Although sexual orientation ranges
See A.R. DAugelli, Sexual Orientation, in 7 Am. Psychol. Assn, Encyclopedia of Psychology 260 (A.E. Kazdin ed., 2000); G.M. Herek, Homosexuality, in 2 The Corsini Encyclopedia of Psychology 774-76 (I.B. Weiner & W.E. Craighead eds., 4th ed. 2010); Institute of Medicine, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011).
3
8 along a continuum from exclusively heterosexual to exclusively homosexual, it is usually discussed in three categories: heterosexual (having sexual and romantic attraction primarily or exclusively to members of the other sex), homosexual (having sexual and romantic attraction primarily or exclusively to members of ones own sex), and bisexual (having a significant degree of sexual and romantic attraction to both sexes). Although homosexuality was classified as a mental disorder when the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, only five years later a study sponsored by the National Institute of Mental Health found no evidence to support the classification.4 On the basis of that study and others demonstrating that the original classification reflected social stigma rather than science,5 the American Psychiatric Association declassified homosexuality as a mental disorder in 1973. In 1974, the American Psychological Association adopted a policy reflecting the same conclusion. For decades, then, the consensus of mental health professionals and researchers has been that homosexuality and bisexuality are normal
4
E. Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techs. 18 (1957).
B.F. Riess, Psychological Tests in Homosexuality, in Homosexual Behavior: A Modern Reappraisal 296 (J. Marmor ed., 1980); J.C. Gonsiorek, The Empirical Basis for the Demise of the Illness Model of Homosexuality, in Homosexuality: Research Implications for Public Policy 115 (J.C. Gonsiorek & J.D. Weinrich eds., 1991).
9 expressions of human sexuality and pose no inherent obstacle to leading a happy, healthy, and productive life, and that gay and lesbian people function well in the full array of social institutions and interpersonal relationships.6 Most gay men and lesbians do not experience their sexual orientation as resulting from a voluntary choice. In a U.S. national probability sample of 662 self-identified lesbian, gay, and bisexual adults, 88% of gay men and 68% of lesbians reported feeling they had no choice at all about their sexual orientation, while another 7% of gay men and 15% of lesbians reported only a small amount of choice. Only 5% of gay men and 16% of lesbians felt they had a fair amount or a great deal of choice.7 Several amici supporting DOMA challenge the conclusion that for most people sexual orientation is not a matter of choice, but they offer no credible scientific support for their position.8 Moreover,
See, e.g., Am. Psychiatric Assn, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974); Am. Psychol. Assn, Minutes of the Annual Meeting of the Council of Representatives, 30 Am.
7 6
Psychologist 620, 633 (1975).
G. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sexuality Res. & Soc. Poly 176 (2010). See also G. Herek et al., Internalized Stigma Among Sexual Minority Adults: Insights From a Social Psychological Perspective, 56 J. Counseling Psychol. 32 (2009).
See Amicus Br. of Liberty Counsel, at 30-31; Amicus Br. of David Boyle, at 35; Amicus Br. of Parents and Friends of ExGays and Gays, passim; Amicus Br. of Family Research Council, at 22-23; Amicus Br. of Dr. Paul McHugh, at 14-28.
10 although some groups and individuals have offered clinical interventions that purport to change sexual orientation from homosexual to heterosexual sometimes called conversion therapiesthese interventions have not been shown to be effective or safe. A review of the scientific literature by an American Psychological Association task force concluded that sexual orientation change efforts are unlikely to succeed and indeed can be harmful.9 All major national mental health organizations including Amicihave adopted policy statements cautioning the profession and the public about treatments that purport to change sexual orientation.10
Am. Psychol. Assn, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009); see also Am. Psychol. Assn, Resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts (2009), both available at http://www.apa.org/pi/lgbt/resources/sexual-orientation.aspx.
See Am. Psychol. Assn, Resolution, supra note 9; Am. Psychiatric Assn, Position Statement: Psychiatric Treatment and Sexual Orientation (1998), available at http://www. psych.org/Departments/EDU/Library/APAOfficialDocuments andRelated/PositionStatements/199820.aspx; Am. Assn for Marriage & Fam. Therapy, Reparative/Conversion Therapy (2009), available at http://www.aamft.org/iMIS15/AAMFT/ MFT_Resources/Content/Resources/Position_On_Couples.aspx; Am. Med. Assn, Policy H-160.991, Health Care Needs of the Homosexual Population, available at http://www.amaassn.org/ama/pub/about-ama/our-people/member-groupssections/glbt-advisory-committee/ama-policy-regarding-sexualorientation.page; Natl Assn of Soc. Workers, Position Statement: Reparative and Conversion Therapies for Lesbians and Gay Men (2000), available at http://www.naswdc.
10
11 III. Sexual Orientation and Relationships. Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex or age. This perspective is incomplete because sexual orientation necessarily involves relationships with other people. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is only by acting with another personor desiring to actthat individuals express their heterosexuality, homosexuality, or bisexuality. Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. Ones sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity. Like heterosexuals, most gay and lesbian people want to form stable, long-lasting relationships,11 and
org/diversity/lgb/reparative.asp; Am. Psychoanalytic Assn, Position Statement: Attempts to Change Sexual Orientation, Gender Identity, or Gender Expression (2012), available at http://www.apsa.org/about_apsaa/position_statements/attempts _to_change_sexual_orientation.aspx; B.L. Frankowski, Sexual Orientation and Adolescents, 113 Pediatrics 1827 (2004). In a 2005 U.S. national probability sample of 662 selfidentified lesbian, gay, and bisexual adults, of those who were currently in a relationship, 78% of the gay men and 87% of the lesbian women said they would marry their partner if it was legal, and, of those not currently in a relationship, 34% of gay
11
12 many of them do: numerous studies using nonprobability samples of gay and lesbian people have found that the vast majority of participants have been in a committed relationship at some point in their lives, that large proportions are currently in such a relationship (40-70% of gay men and 45-80% of lesbian women), and that many of those couples have been together 10 or more years.12 Survey data from probability samples support these findings.13
men and 46% of lesbian women said that they would like to marry someday. Herek et al., Demographic, supra note 7. See also Henry J. Kaiser Fam. Found., Inside-OUT: A Report on
the Experiences of Lesbians, Gays and Bisexuals in America and the Publics Views on Issues and Policies Related to Sexual Orientation 31 (2001), available at http://www.kff.org
/kaiserpolls/upload/New-Surveys-on-Experiences-of-LesbiansGays-and-Bisexuals-and-the-Public-s-Views-Related-to-SexualOrientation-Report.pdf; A.R. DAugelli et al., Lesbian and Gay Youths Aspirations for Marriage and Raising Children, 1 J. LGBT Issues Counseling 77 (2007).
12
Orientation 165 (C.J. Patterson & A.R. DAugelli eds., 2013); L.A. Peplau & A.W. Fingerhut, The Close Relationships of Lesbians and Gay Men, 58 Ann. Rev. Psychol. 405 (2007); L.A. Peplau & N. Ghavami, Gay, Lesbian, and Bisexual Relationships, in Enclyclopedia of Human Relationships (H.T. Reis & S. Sprecher eds., 2009). Herek et al., Demographic, supra note 7; T.C. Mills et al., Health-Related Characteristics of Men Who Have Sex with Men: A Comparison of Those Living in Gay Ghettos with Those Living Elsewhere, 91 Am. J. Pub. Health 980, 982 (Table 1) (2001); S.D. Cochran et al., Prevalence of Mental Disorders, Psychological Distress, and Mental Services Use Among Lesbian, Gay, and Bisexual Adults in the United States, 71 J. Consulting & Clinical Psychol. 53, 56 (2003); Henry J. Kaiser Fam. Found., supra note 11.
13
See A.W. Fingerhut & L.A. Peplau, Same-Sex Romantic Relationships, in Handbook of Psychology and Sexual
13 Data from the 2010 US Census show that same-sex couples headed more than 600,000 US households and more than 45,000 in New York.14 Empirical research demonstrates that the psychological and social aspects of committed relationships between same-sex partners largely resemble those of heterosexual partnerships. Like heterosexual couples, same-sex couples form deep emotional attachments and commitments. Heterosexual and same-sex couples alike face similar issues concerning intimacy, love, equity, loyalty, and stability, and they go through similar processes to address those issues.15 Empirical research also shows that gay and lesbian couples have levels of relationship satisfaction similar to or higher than those of heterosexual couples.16
Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, available at http://www. census.gov/hhes/samesex/files/supp-table-AFF.xls. L.A. Kurdek, Change in Relationship Quality for Partners from Lesbian, Gay Male, and Heterosexual Couples, 22 J. Fam. Psychol. 701 (2008); L.A. Kurdek, Are Gay and Lesbian Cohabiting Couples Really Different from Heterosexual Married Couples?, 66 J. Marriage & Fam. 880 (2004); G.I. Roisman et al., Adult Romantic Relationships as Contexts for Human Development: A Multimethod Comparison of Same-Sex Couples with Opposite-Sex Dating, Engaged, and Married Dyads, 44 Developmental Psychol. 91 (2008); see generally L.A. Kurdek, What Do We Know About Gay and Lesbian Couples?, 14 Current Directions Psychol. Sci. 251 (2005); Peplau & Fingerhut, supra note 12; Peplau & Ghavami, supra note 12.
15 14
16
K.F. Balsam et al., Three-Year Follow-Up of Same-Sex Couples Who Had Civil Unions in Vermont, Same-Sex Couples Not in Civil Unions, and Heterosexual Married Couples, 44
14 IV. The Children of Same-Sex Couples.
A. Many Same-Sex Children.
Couples
Are
Raising
The 2010 Census reported 111,033 households headed by same-sex couples with their own children under 18 years. Among the more than 45,000 New York household heads who reported cohabiting with a same-sex partner, 8,025 had their own children under 18 living at home.17 The number of same-sex couple households reported by the Census is not an estimate of the total number of gay and lesbian parents.18
B. The Factors That Affect The Adjustment of Children Are Not Dependent on Parental Gender or Sexual Orientation.
Hundreds of studies over the past 30 years have elucidated the factors that are associated with healthy adjustment among children and adolescentsi.e., the influences that allow children
Family Communication 233, 236 (A.L. Vangelisti ed., 2004).

17
Developmental Psychol. 102 (2008); Kurdek, Change in Relationship Quality, supra note 15; L.A. Peplau & K.P. Beals, The Family Lives of Lesbians and Gay Men, in Handbook of
2010 Census and 2010 American Community Survey, supra note 14.
18
The Census does not directly assess participants sexual orientation. Thus, the Census data only include gay and lesbian parents who were co-habiting with a same sex partner and who were willing to report their relationship status to the Census. 2010 Census and 2010 American Community Survey, supra note 14.
15 and adolescents to function well in their daily lives.19 The three most important are (1) the qualities of parent-child relationships, (2) the qualities of relationships among significant adults (e.g., parents) in childrens or adolescents lives, and (3) available economic and other resources. As one noted authority in developmental psychology explained: Many studies have shown that adjustment is largely affected by differences in the quality of parenting and parent-child relationships, the quality of the relationships between the parents, and the richness of the economic and social resources available to the family; more recent research signals the importance of congenital differences as well. Dimensions of family structure including such factors as divorce, single parenthood, and the parents sexual orientation and biological relatedness between parents and children are of little or no predictive importance once the process variables are taken into account,
S. Golombok, Parenting: What Really Counts? (2000); M.E. Lamb & C. Lewis, The Role of Parent-Child Relationships in Child Development, in Developmental Science: An Advanced Textbook 429-68 (M.H. Bornstein & M.E. Lamb eds., 5th ed. 2005); C.J. Patterson, & P.D. Hastings, Socialization in the Context of Family Diversity, in Handbook of Socialization: Theory and Research 328-51 (J.E. Grusec & P.D. Hastings eds., 2007).
19
16 because the same factors explain child adjustment regardless of family structure.20 In short, many years of research have shown that, when parent-child and parent-adolescent relationships are characterized by warmth, love and affection, emotional commitment, reliability, and consistency, as well as by appropriate guidance and limit-setting, children and adolescents are likely to show more positive adjustment than when these qualities are absent. Children whose parents provide loving guidance in the context of secure home environments are more likely to flourish, regardless of their parents sexual orientation.21 Research also shows that the quality of relationships among significant adults in a childs life is associated with adjustment. When parental relationships are characterized by love, warmth, cooperation, security, and mutual support, children are more likely to show positive adjustment. In contrast, when parental relationships are conflictridden and acrimonious, adjustment is likely to be less favorable. Family instability, household disruption, and parental divorce are often associated with poorer adjustment and problems that can last into adulthood.22 These correlations are just as true
20
M.E. Lamb, Mothers, Fathers, Families, and Circumstances: Affecting Childrens Adjustment, 16 Applied Developmental Sci. 98 (2012).
Factors
Lamb & Lewis, supra note 19; Patterson & Hastings, supra note 19. 22 See, e.g., P.R. Amato, Children of Divorce in the 1990s: An Update of the Amato and Keith (1991) Meta-Analysis, 15 J. Fam. Psychol. 355 (2001).
21
17 for children reared by same-sex couples as for children reared by heterosexual couples.23 Research with children reared by heterosexual parents indicates that they do better with two parenting figures than with one.24 This finding, however, has not been tested directly with children reared by same-sex couples versus a single lesbian, gay, or bisexual parent. Finally, researchers acknowledge the association between child adjustment and access to economic and other resources. Children with access to sufficient economic resources are likely to live in safer neighborhoods, breathe cleaner air, and eat more nutritious food. They are also more likely to have opportunities to participate in positive afterschool activities and hence to have access to social and emotional resources from teammates, coaches, youth leaders, and others. These children are more
The Family Context of Parenting in Childrens Adaptation to Elementary School (P.A. Cowan et al. eds., 2005); R.W. Chan et al., Psychosocial Adjustment Among Children Conceived Via Donor Insemination By Lesbian and Heterosexual Mothers, 69 Child Dev. 443 (1998); E.M. Cummings et al., Childrens Responses to Everyday Marital Conflict Tactics in the Home, 74 Child Dev. 1918 (2003); E.M. Cummings et al., Everyday Marital Conflict and Child Aggression, 32 J. Abnormal Child Psychol. 191 (2004); Golombok, supra note 19; D. Potter, SameSex Parent Families and Childrens Academic Achievement, 74 J. Marriage & Fam. 556 (2012); M.J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010).
24
23
See, e.g., S. McLanahan & G. Sandefur, Growing Up With a Single Parent: What Hurts, What Helps 39 (1994).
18 likely to show positive adjustment, regardless of their parents sexual orientation.25 In short, the very same factors that are linked to positive development of children with heterosexual parents are also linked to positive development of children with lesbian and gay parents.26
C. There Is No Scientific Basis for Concluding That Gay and Lesbian Parents Are Any Less Fit or Capable Than Heterosexual Parents, or That Their Children Are Any Less Psychologically Healthy and Well Adjusted.
Assertions that heterosexual couples are better parents than same-sex couples, or that the children of lesbian or gay parents fare worse than children of heterosexual parents, are not supported by the cumulative scientific research in this area.27 Rather,
Neighborhood Poverty: Context and Consequences for Children (J. Brooks-Gunn et al. eds., 1997); Consequences of Growing Up Poor (G.J. Duncan & J. Brooks-Gunn eds., 1997); Patterson & Hastings, supra note 19; Potter, supra note 23; Rosenfeld, supra note 23.
25
Identities, Nebraska Symposium on Motivation 141 (D.A. Hope ed., 2009); J. Stacey & T.J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am. Soc. Rev. 159 (2001); C.J. Telingator & C.J. Patterson, Children and Adolescents of Lesbian and Gay Parents, 47 J. Am. Acad. Child & Adolescent Psychiatry 1364 (2008); J.L. Wainright et al., Psychosocial
See Chan et al., supra note 23; C.J. Patterson, Lesbian and Gay Parents and Their Children: A Social Science Perspective, in Contemporary Perspectives on Lesbian, Gay, and Bisexual
26
Adjustment, School Outcomes, and Romantic Relationships of Adolescents With Same-Sex Parents, 75 Child Dev. 1886 (2004).
27
The research on gay, lesbian, and bisexual parents includes dozens of empirical studies. Their findings are summarized in
19 the vast majority of scientific studies that have directly compared gay and lesbian parents with heterosexual parents has consistently shown that the former are as fit and capable parents as the latter and that their children are as psychologically healthy and well adjusted. More research has focused on lesbian mothers than on gay fathers,28 but the
reviews of empirical literature published in respected, peerreviewed journals and academic books. Recent reviews include T.J. Biblarz & J. Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Fam. 3 (2010); A.E. Goldberg, Lesbian and Gay Parents and Their Children: Research on the Family Life Cycle (2010); C.J. Patterson, Family Lives of Lesbian and Gay Adults, in Handbook of Marriage and the Family 659, 668-71 (G.W. Peterson & K.R. Bush eds., 3d ed. 2013); C.J. Patterson, Children of Lesbian and Gay Parents: Psychology, Law, and Policy, 64 Am. Psychologist 727 (2009). For earlier reviews, see, e.g., Stacey & Biblarz, supra note 26; E.C. Perrin & Comm. on Psychosocial Aspects of Child & Fam. Health, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002); C.J. Patterson, Family Relationships of Lesbians and Gay Men, 62 J. Marriage & Fam. 1052 (2000); N. Anderssen et al., Outcomes for Children
with Lesbian or Gay Parents: A Review of Studies from 1978 to 2000, 43 Scand. J. Psychol. 335 (2002).
See, e.g., H. Bos & T.G.M. Sandfort, Childrens Gender Identity in Lesbian and Heterosexual Two-Parent Families, 62 Sex Roles 114 (2010); R.H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Sci. 164, 176 (2010); S. Golombok et al., Children with Lesbian Parents: A Community Study, 39 Developmental Psychol. 20 (2003); I. Rivers et al., Victimization, Social Support, and Psychosocial Functioning Among Children of Same-Sex and Opposite-Sex Couples in the United Kingdom, 44 Developmental Psychol. 127 (2008); J.L. Wainright & C.J. Patterson, Delinquency,
28
20 published studies that have included gay fathers also find that they are as fit and able parents as heterosexual fathers.29 A 2001 comprehensive survey of peer-reviewed scientific studies concluded that the evidence from empirical research shows that parental sexual orientation per se has no measurable effect on the quality of parent-child relationships or on childrens mental health or social adjustment.30 A more recent review by the same authors noted the ubiquitous findings of no differences in comparisons of the families of heterosexual couples to those of lesbian or gay couples, but focused on the relatively small number of differences that have been reported, concluding that overall the differences were positive for the families of same-sex couples at least as often as they were for the families of heterosexual couples.31
Victimization, and Substance Use Among Adolescents With Female Same-Sex Parents, 20 J. Fam. Psychol. 526 (2006).
Farr et al., supra note 28, at 176; see also S. Erich et al., Gay and Lesbian Adoptive Families: An Exploratory Study of Family Functioning, Adoptive Childs Behavior, and Familial Support Networks, 9 J. Fam. Soc. Work 17 (2005); S. Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 J. GLBT Fam. Stud. 43 (2005). For a review of earlier research, see C.J. Patterson, Gay Fathers, in The Role of the Father in Child Development 397, 413 (M.E. Lamb ed., 4th ed. 2004). Stacey & Biblarz, supra note 26, at 176.
29
30 31
Biblarz & Stacey, supra note 27, at 13; see also E.L. Sutfin et al., How Lesbian and Heterosexual Parents Convey Attitudes
21 These conclusions are bolstered by three recent studies using national probability (i.e., representative) samples. One used data from the National Longitudinal Study of Adolescent Health to compare adolescents parented by a female couple with adolescents parented by a heterosexual couple. The researchers found no differences between the two groups of adolescents on measures of a large number of key variables, including psychosocial adjustment, school outcomes, substance use, delinquency, victimization experiences, and 32 relationships with peers. Another study used data from the Early Childhood Longitudinal Study Kindergarten cohort (ECLS-K) to compare the academic achievement of children growing up in various family structures. When the effects of significant family transitions (e.g., related to parental divorce, separation, or death) were taken into account, children in same-sex family structures showed slightly higher achievement levels than children living with their biological mother and
about Gender to their Children: The Role of Gendered Environments, 58 Sex Roles 501 (2008) (finding that the
children of lesbian mothers were more tolerant of other children engaging in behaviors that violate traditional gender norms). Similarly, a recent report by the National Academy of Sciences Institute of Medicine concluded that [s]tudies show that [the children of lesbian and gay parents] are well adjusted and developmentally similar to the children of different-sex parents. Institute of Medicine, supra note 3, at 234. J.L. Wainright & C.J. Patterson, Peer Relations Among Adolescents With Female Same-Sex Parents, 44 Developmental Psychol. 117 (2008); Wainright & Patterson, supra note 28; Wainright et al., supra note 26.
32
22 father (although this difference was not statistically significant).33 In the third study, US Census data were used to compare educational outcomes among children residing in homes with various types of family structure. When differences in household income and parental educational levels (SES) were statistically controlled, the differences in school progress between children of married heterosexual couples and same-sex cohabiting couples were not statistically significant. As the studys author concluded, [t]he analysis in this article, the first to use large-sample nationally representative data, shows that children raised by same-sex couples have no fundamental deficits in making normal progress through school.34 Studies also show that children with gay or lesbian parents do not differ from the children of heterosexual parents in their gender identity (ones psychological sense of being male or female).35 Similarly, although some studies have found that children of lesbian mothers or children raised in same-sex parent families were more accepting of
Potter, supra note 23. Data about parents sexual orientation were not collected in the study. Consequently, parental sexual orientation and relationship were inferred from a series of questions about the household composition and caretakers. 34 Rosenfeld, supra note 23.
35
33
E.g., Bos & Sandfort, supra note 28. For literature reviews, see Goldberg, supra note 27; Patterson, Family Lives, supra note 27; Perrin & Comm., supra note 27, at 342.
23 gender nonconformity in others36 and less genderstereotyped or more flexible in their patterns of gender-role behaviors (e.g., during play37) than those of children in heterosexual parent families, most published studies have found no reliable differences between the children of lesbian and heterosexual mothers in social gender role conformity (adherence to cultural norms defining feminine and masculine behavior).38 A recent study also found that adoptive children of gay fathers showed typical gender role development, as did those of lesbian mothers and those of heterosexual mothers and fathers.39 The available evidence also suggests that parental sexual orientation has no effect on child sexual orientation40 and that the vast majority of gay and
Sutfin et al., supra note 31; M. Fulcher et al., Individual Differences in Gender Development: Associations with Parental Sexual Orientation, Attitudes, and Division of Labor, 58 Sex Roles 330 (2008).
37 36
Sexual Behav. 167 (1986). An earlier paper (M.E. Hotvedt & J.B. Mandel, Children of Lesbian Mothers, in Homosexuality: Social, Psychological, and Biological Issues 275 (W. Paul et al. eds., 1982)) reported data from the same study.
38
A.E. Goldberg et al., Gender-Typed Play Behavior in Early Childhood: Adopted Children with Lesbian, Gay, and Heterosexual Parents, 67 Sex Roles 503 (2012); R. Green et al., Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 Archives
Farr et al., supra note 28. For reviews of the literature, see Goldberg, supra note 27; Patterson, Family Lives, supra note 27.
39 40
See Farr et al., supra note 28.
Golombok et al., supra note 28; S. Golombok & F. Tasker, Do Parents Influence the Sexual Orientation of Their Children?
24 lesbian adults were raised by heterosexual parents and the vast majority of children raised by gay and lesbian parents grow up to be heterosexual.41
Amici emphasize that the abilities of gay and lesbian persons as parents and the positive outcomes for their children are not areas where credible scientific researchers disagree.42 Thus, after careful scrutiny of decades of research, the American Psychological Association concluded in 2004 that (a) there is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children and (b) that
Findings from a Longitudinal Study of Lesbian Families, 32
41
Developmental Psychol. 3 (1996).
Goldberg, supra note 27; Patterson, Family Lives, supra note 27. One unreplicated 1996 Australian study purports to show deficits in lesbian and gay parents and their children. See S. Sarantakos, Children in Three Contexts: Family, Education and Social Development, 21 Child. Australia 23 (1996). But the anomalous Sarantakos results are likely the result of multiple methodological problems, especially confounding the effects of parental sexual orientation with the effects of parental divorce, which is known to correlate with poor adjustment and academic performance. See, e.g., Amato, supra note 22. Some commentators have cited publications by Paul Cameron, but his work has been repeatedly discredited for bias and inaccuracy. See G.M. Herek, Bad Science in the Service of Stigma: A Critique of the Cameron Groups Survey Studies, in Stigma and Sexual Orientation: Understanding Prejudice Against Lesbians, Gay Men, and Bisexuals 223 (G.M. Herek ed., 1998); Baker v. Wade, 106 F.R.D. 526, 536 (N.D. Tex. 1985) (ruling that Cameron made misrepresentations to the court).
42
25 research has shown that the adjustment, development, and psychological well-being of children are unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish. Am. Psychol. Assn, Resolution on Sexual Orientation, Parents, and Children (2004), available at http://www.apa.org/about/governance/council/ policy /parenting.pdf. Similarly, the American Academy of Pediatrics has recently adopted a policy statement which states: Scientific evidence affirms that children have similar developmental and emotional needs, and receive similar parenting, whether they are raised by parents of the same or different genders. If a child has 2 living and capable parents who choose to create a permanent bond by way of civil marriage, it is in the best interests of their child(ren) that legal and social institutions allow and support them to do so, irrespective of their sexual orientation. Am. Acad. of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Policy Statement: Promoting the Well-Being of Children Whose Parents are Gay or Lesbian, 131 Pediatrics (forthcoming 2013). NASW has similarly determined that [t]he most striking feature of the research on lesbian mothers, gay fathers, and their children is the absence of pathological findings. The second most striking feature is how similar the groups of gay and lesbian parents and their children are to heterosexual parents and their children that were included in the studies. Natl Assn of Soc. Workers, Policy Statement: Lesbian, Gay, and Bisexual Issues, in
26 Social Work Speaks 193, 194 (4th ed. 1997). See also Natl Assn of Soc. Workers, Policy Statement: Family Planning and Reproductive Choice, in Social Work Speaks 129, 132 (9th ed. 2012). The American Psychoanalytic Association has likewise determined that [t]here is no credible evidence that shows that a parents sexual orientation or gender identity will adversely affect the development of the child. Am. Psychoanalytic Assn, Position Statement: Parenting (2012), available at http://www.apsa.org/about_apsaa/ position_statements/parenting.aspx. In adopting an official Position Statement in support of legal recognition of same-sex civil marriage, the American Psychiatric Association observed that no research has shown that the children raised by lesbians and gay men are less well adjusted than those reared within heterosexual relationships. Am. Psychiatric Assn, Position Statement: Support of Legal Recognition of SameSex Civil Marriage (2005), available at http://www.psych.org/Departments/EDU/ Library/APAOfficialDocumentsandRelated/PositionS tatements/200502.aspx. Finally, the American Medical Association likewise has adopted a policy supporting legislative and other reforms to allow adoption by same sex partners. 43
43
See Am. Med. Assn, Policy H-60.940, Partner Co-Adoption, available at http://www.ama-assn.org/ama/pub/about-ama/ourpeople/member-groups-sections/glbt-advisory-committee/amapolicy-regarding-sexual-orientation.page.
27 V. Challenges to the Evidence on Same-Sex Parents by Other Amici Are Unfounded.
A. The Methodological Criticisms Fail to Recognize the Cumulative Nature of Scientific Research.
Scientific research is a cumulative process. Empirical studies inevitably have limitations. Simply because a particular studys methodology has imperfections or its results warrant qualifications does not mean that the entire study should be dismissed. Rather, it should be evaluated within the context of the cumulative relevant research, recognizing that some studies strengths can offset other studies corresponding limitations. area because some studies used small nonprobability samples44 ignore the fact that many findings from those studies have been replicated in national probability samples.45 They also fail to acknowledge that studies with nonprobability samples can answer important scientific questions, especially when they include appropriate comparison groups.46
44 45
Amici who challenge all empirical findings in this
E.g., Amicus Br. of Social Science Professors, at 13-21.
Wainright & Patterson, Delinquency, supra note 28 (finding no differences due to parent sexual orientation between 44 adolescents raised by same-sex couples and 44 by heterosexual couples, all drawn from a national representative sample); Wainright & Patterson, Peer Relations, supra note 32 (same); Potter, supra note 23; Rosenfeld, supra note 23 (using US Census data).
See supra note 2. One amicus disparages nearly all previous studies because they failed to include a married biological
46
28 Moreover, amici do not claim the studies are invalid, only that their implications are limited to children raised by highly educated and affluent middle to upper class white women.47 Even in those studies that are so limited, appropriate comparison across sexual orientation groups can test the claim that sexual orientation affects parenting, and the recent research on national probability samples reinforces these studies. Amici herein do not claim that all same-sex couples will be equally effective in raising children,48 but rather that sexual orientation is irrelevant to parenting outcomes.49
family control group. Amicus Br. of Social Science Professors, at 25. But many studies have appropriately included such a group, and their findings are largely consistent with the overall patterns described herein. See, e.g., Potter, supra note 23; Rosenfeld, supra note 23; Wainright & Patterson, Peer Relations, supra note 32; Wainright & Patterson, Delinquency, supra note 28; Wainright et al., supra note 26. Moreover, the correct comparison group depends on the nature of the study. For example, comparing children of married heterosexual couples to children of single lesbian mothers would conflate parent sexual orientation with number of parents. The appropriate comparison group in such studies is the children of single heterosexual mothers.
47 48
E.g., Amicus Br. of Social Science Professors, at 20.
E.g., factors such as access to economic resources affect child development outcomes (note 26 above).
49
Several amici criticizing studies cited here rely on L. Marks, Same-Sex Parenting and Childrens Outcomes: A Closer Examination of the American Psychological Associations Brief on Lesbian and Gay Parenting, 41 Soc. Sci. Res. 735 (2012). Marks opined that studies cited in an APA 2005 pamphlet (not a brief) allow no conclusions regarding lesbian and gay parenting. This wholesale rejection of an entire body of
29
B. The Regnerus Study Does Not Provide Evidence That Parental Sexual Orientation Affects Child Development Outcomes.
Several amici base their challenge on a recent study (the Regnerus study) that compared child development outcomes across a range of family types, including two types that were characterized as lesbian mother and gay father families.50 But the studys design precludes any meaningful conclusions because of its overbroad definition of children raised by gay or lesbian parents and its conflation of family instability with any potential effects of parental sexual orientation. Regnerus conducted an Internet survey to identify adults who reported believing that at some time in their childhood their mother or father ever ha[d] a romantic relationship with someone of the same sex.51 These individuals were placed into the categories of LM (Lesbian Mother) or GF (Gay Father). These labels are misleading, however, because no data were collected to verify (1) whether the parent actually had a homosexual orientation or self-identified as gay or lesbian, (2) whether the perceived romantic relationship ever in fact occurred,
research fails to recognize the realities of the nature of scientific knowledge as discussed above. Moreover, Amicis conclusions drawn from those earlier studies are borne out by the research subsequent to 2005. M. Regnerus, How Different are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 Soc. Sci. Res. 752 (2012).
51 50
Id. at 756.
30 (3) whether the assumed relationship was continuous, episodic, or one-time only, or (4) whether the individual reporting the relationship was actually raised by a homosexual parent, much less a parent in a long-term relationship with a same-sex partner. Indeed, most participants in these groups spent very little, if any, time being raised by a samesex couple.52 Other participants were placed into six categories defined by the family structure in which they grew upe.g., continuously married biological parents, stepfamily, single parent. By contrast, the Lesbian Mother and Gay Father categories were not subdivided according to whether the children had experienced the divorce of their parents or other forms of household instability. Regnerus then reported that respondents in the Lesbian Mother and Gay Father groups displayed considerably more problems, especially when compared to respondents raised by their biological parents with no disruption in their home situation. As noted earlier, family instability and parental divorce are often associated with poor adjustment and problems that can last into adulthood.53 When data from the above-cited Early Childhood
52
Id. at 757. Only 23% of those who said their mother ever had a same-sex romantic relationship reported they had lived in a household with the mothers female partner for at least 3 years. Fewer than 2% of those who reported their father ever had a same-sex romantic relationship said they had lived in a household with the fathers male partner for at least 3 years, and more than half had never done so.
53
See supra notes 22-24 and accompanying text.
31 Longitudinal Study were adjusted to account for the effects of such instability, an apparent deficit in academic achievement by children raised by parents in same-sex couples was reversed.54 Similarly, in an analysis of US Census data, children in families headed by a same-sex couple were more likely to be progressing normally in school if their home situation had been stable over time.55 Regnerus did not control for such events in his analysis.56 Indeed, the studys design virtually ensured that respondents from same-sex parent families had
54 55
See supra note 33 and accompanying text.
M.J. Rosenfeld, Reply to Allen et al., Demography (Nov. 18, 2012) (published online, DOI 10.1007/s13524-012-0170-4). See also D.W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography (Nov. 18, 2012) (published online, DOI 10.1007/s13524-012-0169-x).
Regnerus (joined by some amici) defends the compounding of sexual orientation and instability as either too difficult to avoid or justified by the possibility that same-sex relationships might be inherently less stable than heterosexual relationships. See, e.g., Amicus Br. of Social Science Professors, at 25-26; Amicus Br. of the Beverly Lahaye Institute and the National Legal Foundation, at 29-30. The first rationale has no basisnot only could Regnerus have asked participants whether they were raised exclusively by a same-sex couple for their first 18 years, he did. See M. Regnerus, The New Family Structures Study, Survey Instrument at 11-12, available at http://www.prc.utexas.edu/nfss/documents/NFSS-SurveyInstrument.pdf (asking participants to complete an annual calendar listing who exactly you lived with, when, and for approximately how long, from when you were born until age 18). The second rationale, even assuming that support for it could be found, implicitly concedes that the moving force behind the effects observed is instability, not sexual orientation.
56
32 experienced less family stability than respondents from (by definition) stable heterosexual-parent families.57 Of all participants in the lesbian mothers category, only two were actually raised by a lesbian couple from age 0 to 18.58 Regnerus did not report the corresponding number with respect to the 73 participants in the gay fathers" category. Given that only 23% lived with the father and fathers partner for even four months of their first 18 years (and fewer than 2% for at least 3 years),59 presumably the number who spent all 18 years in such a family is extremely small, if not zero. For these reasons, an independent auditor appointed by the journal that published the articles described it as a non-scientific study and concluded it should not have been published.60 Moreover, over
The intact biological family group included only participants who were raised by married biological parents who had never divorced, even after the participants childhood. Regnerus, supra note 50, at 757.
58 57
M. Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41 Soc. Sci. Res. 1367 (2012).
59 60
Id.
D.E. Sherkat, The Editorial Process and Politicized Scholarship: Monday Morning Editorial Quarterbacking and a Call for Scientific Vigilance, 41 Soc. Sci. Res. 1346 (2012). The suggestion of amicus curiae the Beverly Lahaye Institute (at 25-27) that Dr. Sherkat gave the Regnerus Study a clean bill of health is inaccurate, to say the least. He did not fault the journal for approving the publication based on the strength of the reviewers comments, but he found that the reviewers were scholars who should have known better [but] failed to recuse themselves from the review process, and did not simply
33 200 scientists, clinicians, and academics signed a letter to the journal's editorial board commenting on the studys scientific deficiencies.61 In short, the Regnerus study sheds no light on the parenting of stable same-sex couplesas Regnerus (and some amici who cite him) acknowledges.62 Suggestions to the contrary63 are simply inaccurate.
ignore[], but lauded serious flaws and distortions in the study. Sherkat at 1347.
61
G.J. Gates et al., Letter to the editors and advisory editors of Social Science Research, 41 Soc. Sci. Res. 1350, 1351 (2012) (noting that the study could not actually directly examine the impact of having a gay or lesbian parent because of the unusual method of defining those groups, and that it fails to distinguish family structure and family instability, and concluding that [t]he methodologies used in this paper and the interpretation of the findings are inappropriate). Regnerus, supra note 50, at 765 (Child outcomes in stable, planned GLB families and those that are the product of previous heterosexual unions are quite likely distinctive, as previous studies conclusions would suggest.); Amicus Br. of Social Science Professors, at 24 ([T]he suboptimal outcomes may not be due to the sexual orientation or sexual behavior of the parent.).
62
See Amicus Br. of Liberty Counsel, at 39 (suggesting Regnerus evaluated children raised in same-sex households in a study that controlled for external variables); Amicus Br. of Manhattan Declaration, at 9 n.13 (same); Amicus Br. of Helen M. Alvar, at 20 (same); Amicus Br. of National Association of Evangelicals et al., at 12-13 & n.5 (same).
63
34 VI. Denying Federal Recognition to Legally Married Same-Sex Couples Stigmatizes Them. The foregoing shows that the beliefs about lesbians and gay men relied on by Congress in enacting DOMAabout their capacity for committed, long lasting relationships, and their ability to raise healthy well-adjusted childrenare contradicted by the scientific evidence and instead reflect an unreasoned antipathy towards an identifiable minority. In institutionalizing greater access by heterosexuals than gay men and lesbians to the many federal resources and benefits accorded married couples and their children, the Act conveys the federal governments judgment that committed intimate relationships between people of the same sexeven when recognized as legal marriages by the couples stateare inferior to heterosexual relationships.64 This is the essence of stigma. A stigmatized condition or status is negatively valued by society, defines a persons social identity, and thus disadvantages that person.65 A classic work
By not recognizing same-sex marriages, DOMA makes children more vulnerable. For example, in a family where a working parent dies, the surviving parent is not considered a surviving spouse eligible for mothers or fathers benefits, depriving the family and child of significant economic protection. 42 U.S.C. 402(g). See also supra note 25.
64
See E. Goffman, Stigma: Notes on the Management of Spoiled Identity (1963); B.G. Link & J.C. Phelan, Conceptualizing Stigma, 27 Ann. Rev. Soc. 363 (2001); J. Crocker et al., Social Stigma, in 2 The Handbook of Social Psychology 504 (D.T. Gilbert et al. eds., 4th ed. 1998); Am. Med. Assn, Policy H65.973, Health Care Disparities in Same-Sex Partner Households, available at http://www.ama-assn.org/ama/pub/
65
35 in this area characterized stigma as an undesired differentness.66 It can be manifested both in social institutions, such as the law, and in individual behaviors. Laws that accord majority and minority groups differing status highlight the perceived differentness of the minority and thereby tend to legitimize prejudicial attitudes and individual acts against the disfavored group, including ostracism, harassment, discrimination, and violence. Large numbers of lesbian, gay, and bisexual people experience such acts of prejudice because of their sexual orientation.67 DOMA is an instance of institutional stigma. It conveys the governments judgment that, in the
about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.page (recognizing that exclusion from civil marriage contributes to health care disparities affecting same-sex households).
66 67
Goffman, supra note 65, at 5.
A national survey of a representative sample of gay, lesbian, and bisexual adults found that 21% of them had been the target of a physical assault or property crime since age 18 because of their sexual orientation. Thirty-eight percent of gay men had been the target of assault or property crime because of their sexual orientation. Eighteen percent of gay men and 16% of lesbians reported they had experienced discrimination in housing or employment. G.M. Herek, Hate Crimes and Stigma-
Consulting & Clinical Psychol. 945, 948 (1999); M.V.L. Badgett, Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001).
Related Experiences Among Sexual Minority Adults in the United States: Prevalence Estimates from a National Probability Sample, 24 J. Interpersonal Violence 54 (2009); see also G.M. Herek et al., Psychological Sequelae of Hate-Crime Victimization Among Lesbian, Gay, and Bisexual Adults, 67 J.
36 realm of intimate relationships, a legally married same-sex couple is inherently less deserving of societys full recognition through the provision of federal marriage-linked benefits than are heterosexual couples. By devaluing and delegitimizing the relationships that constitute the very core of a homosexual orientation, the Act compounds and perpetuates the stigma historically attached to homosexuality. Indeed, this effect of the statute condemns it quite apart from its denial of tangible financial benefits to married same-sex couples, for the Supreme Court has repeatedly recognized the unconstitutional nature of stigmatizing legislation based on stereotypic classifications. See Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) ([A]s we have repeatedly emphasized, discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community * * * can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.) (footnote and citations omitted).
37 CONCLUSION The judgment below should be affirmed. Respectfully submitted,

NATHALIE F.P. GILFOYLE AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Street, N.E. Washington, DC 20002 (202) 336-6100 WILLIAM F. SHEEHAN ANDREW S. HUDSON GOODWIN PROCTER LLP 901 New York Avenue, NW Washington, DC 20001 (202) 346-4303 wsheehan@goodwinprocter .com PAUL M. SMITH JENNER & BLOCK LLP 1099 New York Avenue, NW Washington, DC 20001 (202) 639-6000
Counsel of Record
Counsel for Amici Curiae

March 1, 2013
Exhibit 11
NOS. 12-144, 12-307

DENNIS HOLLINGSWORTH, ET AL., Petitioners,
v.
KRISTIN M. PERRY, ET AL., Respondents. UNITED STATES, Petitioner,
v.
EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, AND BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Respondents. On Writs of Certiorari to the United States Courts of Appeals for the Ninth and Second Circuits BRIEF OF AMICUS CURIAE AMERICAN SOCIOLOGICAL ASSOCIATION IN SUPPORT OF RESPONDENT KRISTIN M. PERRY AND RESPONDENT EDITH SCHLAIN WINDSOR
Carmine D. Boccuzzi, Jr. (Counsel of Record) Scott Thompson Mark Lightner CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY 10006 (212) 225-2000
cboccuzzi@cgsh.com
Counsel for Amicus Curiae American Sociological Association
Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001
i TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. SCHOLARLY CONSENSUS IS CLEAR: CHILDREN OF SAME-SEX PARENTS FARE JUST AS WELL AS CHILDREN OF OPPOSITE-SEX PARENTS . . . . . . . . . . . . . . . . 6 II. THE RESEARCH CLAIMED TO UNDERMINE THE CONSENSUS EITHER DOES NOT ADDRESS SAME-SEX PARENTS AND THEIR CHILDREN OR IS MISCHARACTERIZED . . 15 A. THE REGNERUS STUDY DOES NOT SUPPORT CONCLUSIONS REGARDING THE IMPACT OF BEING RAISED BY SAME-SEX PARENTS . . . . . . . . . . . . . . . . . 16 B. THE STUDIES CITED BY BLAG, THE PROPOSITION 8 PROPONENTS, AND THEIR AMICI DO NOT ADDRESS SAMESEX PARENTS AND THEREFORE DO NOT UNDERMINE THE CONSENSUS . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ii TABLE OF AUTHORITIES Page(s) Cases Atkins v. Virginia, 536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . 5 Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . . . . . . 29 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert. granted, 133 S. Ct. 786 (U.S. 2012) . . . . . . . . . . . . . . . . . . . . . . 4 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), affd, 671 F.3d 1052 (9th Cir. 2012), cert. granted, 133 S. Ct. 786 (U.S. 2012) . . . . . . . . . . . . . . . . . . passim Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . 5, 29 Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . 2 Roper v. Simmons, 548 U.S 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 5 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) . . . . . . . . . . . . . . . 27
iii Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012) . . . . . . . . . . . 4 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), aff'd, 699 F.3d 169 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012) . . . . . . . . . . . . 4 Other Authorities Alicia L. Fedewa & Teresa P. Clark, Parent Practices and Home-School Partnerships: A Differential Effect for Children with Same-Sex Coupled Parents?, 5 Journal of GLBT Family Studies 312 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 8 Brent Miller et al., Comparisons of Adopted and Non-Adopted Adolescents in a Large, Nationally Representative Sample, 71 Child Development 1458 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health (C.H. Zeanah Jr. ed., 2d ed. 2000) . . . . 28 Charlotte J. Patterson & Jennifer L. Wainright, Adolescents with Same-Sex Parents: Findings from the National Longitudinal Study of Adolescent Health, in Adoption by Lesbians and Gay Men: A New Dimension in Family Diversity (David M. Brodzinsky & Adam Pertman eds., 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iv Chris Johnson, Anti-Gay Briefs Mischaracterized Study, Washington Blade (Jan. 25, 2013), http://www.washingtonblade.com/2013/01/25/a nti-gay-legal-briefs-mischaracterized-parentingstudy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Daniel Potter, Same-Sex Parent Families and Childrens Academic Achievement, 74 Journal of Marriage & Family 556 (2012) . . . . . . . . . . . . . . 7 David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012 . . . . . . . . . 7 David Popenoe, Life without Father: Compelling New Evidence that Fatherhood & Marriage Are Indispensable for the Good of Children & Society (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography (Nov. 2012), http://link.springer.com/article/10.1007 /s13524-012-0169-x/fulltext.html . . . . . . . . . . . . 8 Eleanor Maccoby, The Two Sexes (1998) . . . . . . . . 28 Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26 Developmental and Behavioral Pediatrics 224 (2005) . . . . . . . . . . . 10 Gary J. Gates et al., Letter to the Editor and Advisory Editors of Social Science Research, 41 Social Science Research 1350 (2012) . . . . . . . . . 20
v Jennifer L. Wainright & Charlotte J. Patterson, Delinquency, Victimization, and Substance Use Among Adolescents with Female Same-Sex Parents, 20 Journal of Family Psychology 526 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Jennifer L. Wainright & Charlotte J. Patterson, Peer Relations Among Adolescents with Female Same-Sex Parents, 44 Developmental Psychology 117 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Jennifer L. Wainright et al., Psychosocial Adjustment, School Outcomes, and Romantic Relationships of Adolescents with Same-Sex Parents, 75 Child Development 1886 (2004) 9, 10 Joseph G. Kosciw & Elizabeth M. Diaz, Involved, Invisible, Ignored: The Experiences of Lesbian, Gay, Bisexual, and Transgender Parents and Their Children in Our Nations K-12 Schools, Gay, Lesbian and Straight Education Network (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Justin A. Lavner et al., Can Gay and Lesbian Parents Promote Healthy Development in HighRisk Children Adopted from Foster Care?, 82 American Journal of Orthopsychiatry 465 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Kristen Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, Child Trends Research Brief (2002), http://www. childtrends.org/files/marriagerb602.pdf 23, 24, 25
vi Loes van Gelderen et al., Quality of Life of Adolescents Raised from Birth by Lesbian Mothers: The US National Longitudinal Family Study, 33 Journal of Developmental & Behavioral Pediatrics 1 (2012) . . . . . . . . . . 10-11 Margaret Somerville, Childrens Human Rights to Natural Biological Origins and Family Structure , 1 International Journal of Jurisprudence of the Family 35 (2010) . . . . . . . 27 Marilyn Coleman et al., Reinvestigating Remarriage: Another Decade of Progress, 62 Journal of Marriage & Family 1288 (2000) . . . 23 Mark Oppenheimer, In Shift, an Activist Enlists Same-Sex Couples in a Pro-Marriage Coalition, N.Y. Times, Jan. 29, 2013 . . . . . . . . . . . . . . . . . . 7 Mark Regnerus, How Different Are the Adult Children of Parents who have Same-Sex Relationships? Findings from the New Family Structures Survey, 41 Social Science Research 752 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . passim Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41 Social Science Research 1367 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 Mark V. Flinn et al., Growth and Fluctuating Assymetry of Stepchildren, 20 Evolutionary Human Behavior 465 (1999) . . . . . . . . . . . . . . . 23
vii Michael J. Rosenfeld, Reply to Allen et al., Demography (Nov. 2012), http://link.springer. com/article/10.1007%2Fs13524-012-0170-4 . . . . 9 Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010) . . . . . . . . . . . . . . . . . . . . 8 Michael Lamb, Mothers, Fathers, Families, and Circumstances: Factors Affecting Childrens Adjustment, 16 Applied Developmental Science 98 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7, 11 Nanette Gartrell & Henny W. Bos, US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents, 126 Pediatrics 28 (2010) . . 11, 13, 27 Nanette Gartrell et al., Adolescents of the U.S. National Longitudinal Lesbian Family Study: Sexual Orientation, Sexual Behavior, and Sexual Risk Exposure, 40 Archives of Sexual Behavior 1199 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Nanette Gartrell et al., New Trends in Same-Sex Sexual Contact for American Adolescents, 41 Archives of Sexual Behavior 5 (2012) . . . . . 12-13 Nicholas H. Wolfinger, Understanding the Divorce Cycle: The Children of Divorce in Their Own Marriages (2005) . . . . . . . . . . . . . . . . . . . . . . . . 23 Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Society 27 (2004) . . . . . . . . . . . . . 31
viii Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy, 26 Law & Policy 87 (2004) . . 25-26 Paul R. Amato & Fernando Rivera, Paternal Involvement and Childrens Behavior Problems, 61 Journal of Marriage & Family 375 (1999) . . 28 Paul R. Amato & Frieda Fowler, Parenting Practices, Child Adjustment, and Family Diversity, 64 Journal of Marriage & Family 703 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Rachel H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Science 164 (2010) . . . . . . . . . . 11 Rand D. Conger et al., Socioeconomic Status, Family Processes, and Individual Development, 72 Journal of Marriage & Family 685 (2010) . . 14 Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent (1994) . . . . . . . . . . . . . . . . 23 Scott Ryan, Parent-Child Interaction Styles between Gay and Lesbian Parents and Their Adopted Children, 3 Journal of GLBT Family Studies 105 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in Adolescent SeparationIndividuation, 62 New Directions for Child & Adolescent Development 41 (1993) . . . . . . . . . . 28
ix Stephen Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 Journal of GLBT Family Studies 43 (2005) . . . 11 Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families 65 Journal of Marriage & Family 876 (2003) . . . . . . . . . . . . . 25
1 INTEREST OF AMICUS CURIAE1 The American Sociological Association (ASA) is the national professional and scholarly association of sociologists in the United States. Founded in 1905, the ASA has more than 14,000 members, including most sociologists holding doctoral degrees from accredited universities. The ASA publishes nine leading peerreviewed journals. The ASA is committed to and bound by the highest standards of research methodology and objectivity and is dedicated to advancing sociology as a scientific discipline and profession that serves the public good. The ASA has a long history of presenting the consensus research findings of social scientists to American courts for their use in evaluating evidence and legal issues, and its conclusions are regularly relied on by courts. As part of that mission, the ASA submits this brief to present to the Court the consensus view of social scientists on certain issues raised in these casesnamely, the effects of same-sex parenting on the wellbeing of children.
Counsel for each party has consented to the filing of this Brief, as indicated by letters filed with the Clerk of the Court. Pursuant to Rule 37.6, amicus curiae state that no counsel for a party authored any part of this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief.
2 SUMMARY OF ARGUMENT In their briefs to the Court, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), the Hollingsworth Petitioners (the Proposition 8 Proponents), and their respective amici assert that children fare better with opposite-sex parents2 than with same-sex parents. They contend that this alleged fact justifies both the Defense of Marriage Act (DOMA), which denies federal recognition to legally married same-sex couples, and Proposition 8s revocation of marriage rights for samesex couples in California. For instance, BLAG argues that biological differentiation in the roles of mothers and fathers makes it rational3 to encourage situations in which children have one of each. Brief for Respondent BLAG at 48, United States v. Windsor, No. 12-307 (U.S. Jan. 22, 2013). BLAG further contends that [b]iological parents have a genetic stake in the success of their children that others, such as adoptive parents and same-sex parents, do not have. Id. at 47. The Proposition 8 Proponents advance similar arguments. See Brief for Petitioner Hollingsworth at
2
In order to be consistent with prior court decisions and the terms utilized by the parties in the courts below, we refer to male-female parents as opposite-sex parents throughout this brief. The parties dispute the appropriate level of scrutiny. However, even assuming that the lowest level of scrutiny applies, the asserted interest in childrens wellbeing cannot be accepted as a rationale for DOMA or Proposition 8. When legislative classifications bear no rational relationship to legitimate government interests, those classifications violate the equal protection clause of both the Fifth and Fourteenth Amendments. Romer v. Evans, 517 U.S. 620, 631 (1996).
3 52-53, Hollingsworth v. Perry, No. 12-144 (U.S. Jan. 22, 2013). However, the claim that same-sex parents produce less positive child outcomes than opposite-sex parentseither because such families lack both a male and female parent or because both parents are not the biological parents of their childrencontradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a childs wellbeing. The clear and consistent consensus in the social science profession is that across a wide range of indicators, children fare just as well when they are raised by same-sex parents when compared to children raised by opposite-sex parents. The social science studies cited by BLAG, Proposition 8 Proponents, and their amici to support their arguments fail to address same-sex parents at all. Accordingly, as a matter of science, these studies cannot serve as the basis for conclusions about same-sex parents and related child outcomes and do not undermine the social science consensus that children fare just as well with same-sex parents. To the extent some of the studies cited by BLAG and the Proposition 8 Proponents show that stability improves child outcomes, they confirm that
4 marriage rights for same-sex couples and the federal recognition of such marriages are likely to improve the wellbeing of children of same-sex parents by providing enhanced family stability. The research presented in this brief articulates these points in greater detail, and demonstrates that the governments interest in promoting the wellbeing of children is neither substantially nor rationally connected to DOMA or Proposition 8, because the overwhelming scientific evidence shows clearly that same-sex couples are equally capable of generating positive child outcomes.4
As explained by Respondent Edith Schlain Windsor and acknowledged by the district court in the Windsor case, DOMA in no way affects whether children will be raised by same-sex or opposite-sex parents. It does not encourage gay and lesbian individuals to enter into opposite-sex marriages or deter such individuals from having children within same-sex relationships. Additionally, DOMA in no way impacts heterosexual couples decisions regarding marriage: We agree that promotion of procreation can be an important government objective. But we do not see how DOMA is substantially related to it. Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012). See also Windsor v. United States, 833 F. Supp. 2d 394, 404 (S.D.N.Y. 2012), affd, 699 F.3d 169 (2d Cir. 2012), cert. granted, 81 U.S.L.W. 3072 (U.S. Dec. 7, 2012) (DOMA has no direct impact on heterosexual couples at all; therefore, its ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married, is remote, at best.). Similarly, as the United States Court of Appeals for the Ninth Circuit noted in Perry, taking away the right to marry from same-sex couples has no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012), cert. granted, 133 S. Ct. 786 (U.S. 2012).
5 This Court has long relied on social science research to inform its decisions. For example, in Roper v. Simmons, the Court relied on social science research showing that juveniles have less control, or less experience with control, over their own environment and that [t]he personality traits of juveniles are more transitory, less fixed to support its conclusion that capital punishment for crimes committed while a minor is unconstitutional. 543 U.S 551, 569-70 (2005); see also Atkins v. Virginia, 536 U.S. 304, 318 (2002) (noting that [t]here is no evidence that [mentally retarded individuals] are more likely to engage in criminal conduct than others and holding, in part based on the social science evidence and germane expertise of amicus curiae, that executing mentally retarded individuals violates the Eighth Amendment); Price Waterhouse v. Hopkins, 490 U.S. 228, 255-56 (1989) (relying in part on the testimony of a social psychologist to conclude that the employer of a female worker engaged in sex stereotyping). BLAG and the Proposition 8 Proponents offer no facts to support the contention that Congress and the State of California possessed an important or rational basis for DOMA and Proposition 8. In this instance, when the social science evidence is exhaustively examinedwhich the ASA has donethe facts demonstrate that children fare just as well when raised by same-sex parents. Unsubstantiated fears regarding same-sex child rearing do not overcome these facts and do not justify upholding DOMA and Proposition 8.
6 ARGUMENT I. SCHOLARLY CONSENSUS IS CLEAR: CHILDREN OF SAME-SEX PARENTS FARE JUST AS WELL AS CHILDREN OF OPPOSITE-SEX PARENTS Contrary to the assertions of BLAG, the Proposition 8 Proponents, and their amici, the social science consensus is clear: children raised by same-sex parents fare just as well as children raised by opposite-sex parents. Numerous nationally representative, credible, and methodologically sound social science studies form the basis of this consensus. These studies reveal that children raised by same-sex parents fare just as well as children raised by opposite-sex couples across a wide spectrum of child-wellbeing measures: academic performance, cognitive development, social development, psychological health, early sexual activity, and substance abuse. Moreover, these studies are supported by and consistent with the evidence introduced into the records below and accepted by the district court in Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010). This evidence includes the research of Dr. Michael Lamb, an expert in child social and psychological development who has conducted extensive reviews of twenty-five years worth of research on the wellbeing of children of same-sex parents. See, e.g., Michael Lamb, Mothers, Fathers, Families, and Circumstances: Factors Affecting
7 Childrens Adjustment, 16 Applied Developmental Science 98, 104 (2012).5 Academic Performance and Cognitive Development Social science research confirms that the academic performance of children raised by same-sex parents is indistinguishable from that of children raised by opposite-sex parents. A leading study by Daniel Potter based on nationally representative, longitudinal data found no significant difference in academic achievement between children of same-sex parents and children of opposite-sex parents. See Daniel Potter, Same-Sex Parent Families and Childrens Academic Achievement, 74 Journal of Marriage & Family 556 (2012). Similarly, another leading 2009 study by sociologists Alicia Fedewa and Teresa Clark employing nationally representative data that examined the academic achievement of first-grade children reported
During the Perry v. Schwarzeneggar trial, the Proposition 8 Proponents eschew[ed] all but a rather limited factual presentation, and presented only one witness, David Blankenhornwho is not a social scientistto address the government interest in marriage. 704 F. Supp. 2d at 931. The district court concluded that this sole witness provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. Id. Since the trial, Blankenhorn has abandoned his former position regarding marriage rights for samesex couples. See David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012. As Blankenhorn recently explained, it is time to build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same. Mark Oppenheimer, In Shift, an Activist Enlists Same-Sex Couples in a Pro-Marriage Coalition, N.Y. Times, Jan. 29, 2013.
8 no significant differences in academic achievement between children raised by same-sex and opposite-sex parents. See Alicia L. Fedewa & Teresa P. Clark, Parent Practices and Home-School Partnerships: A Differential Effect for Children with Same-Sex Coupled Parents?, 5 Journal of GLBT Family Studies 312 (2009); see also Michael J. Rosenfeld, Nontraditional Families and Childhood Progress Through School, 47 Demography 755 (2010) (demonstrating that children of residentially stable same-sex parents are as likely to make normal progress through school as children from stable opposite-sex married parents); Douglas W. Allen et al., Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld, Demography (Nov. 2012), http://link.springer.com/ article/10.1007/s13524-012-0169-x/fulltext.html (confirming similar results of academic performance when comparing children of residentially stable samesex parents with children of stable opposite-sex married parents).6 The same pattern holds true among
The amici of BLAG and the Proposition 8 Proponents rely upon this study by Douglas Allen. Allen re-works data used by Rosenfeld, but ignores stability as a control factor, and as a result finds a difference in academic achievement. However, as Rosenfeld himself responds, and as demonstrated by the social science consensus, stability is the principal factor influencing child outcomes. By removing the control element for stability, Allen cannot discern childrens family history. Allens work thereby conceals that many children in same-sex parent families come from orphanages, foster families, or heterosexual parents who break up, influencing the results but not reflecting on the quality of same-sex parents. When stability is included as a control element, Allens study confirms that same-sex parents have no negative impact on
9 older children. For example, in another nationally representative study, social scientists found similar GPA levels among adolescents living with same-sex and opposite-sex parents. See Jennifer L. Wainright et al., Psychosocial Adjustment, School Outcomes, and Romantic Relationships of Adolescents with Same-Sex Parents, 75 Child Development 1886 (2004). Research also reveals similar cognitive development between children raised by same-sex parents and opposite-sex parents. See Justin A. Lavner et al., Can Gay and Lesbian Parents Promote Healthy Development in High-Risk Children Adopted from Foster Care?, 82 American Journal of Orthopsychiatry 465 (2012). In fact, another study of children with same-sex parents reveals that they score at least as welland sometimes better thanchildren of oppositesex parents on numerous indicators of educational achievement and involvement. See Joseph G. Kosciw & Elizabeth M. Diaz, Involved, Invisible, Ignored: The Experiences of Lesbian, Gay, Bisexual, and Transgender Parents and Their Children in Our Nations K-12 Schools, Gay, Lesbian and Straight Education Network (2008). Social Development The social development of children raised by samesex parents is equivalent to that of children raised by opposite-sex parents. Analysis of nationally
academic outcomes of children. See Michael J. Rosenfeld, Reply to Allen et al., Demography (Nov. 2012), http://link.springer.com/ article/10.1007%2Fs13524-012-0170-4.
10 representative data reveals no differences in social adjustment depending on whether children were raised by same-sex or opposite-sex parents. See Fedewa & Clark at 312. Nationally representative studies of adolescents find that the number, support, and quality of peer relationships and friendships are similar for teens raised by female same-sex couples and those raised by opposite-sex parents. See Jennifer L. Wainright & Charlotte J. Patterson, Peer Relations Among Adolescents with Female Same-Sex Parents, 44 Developmental Psychology 117 (2008); see also Fiona Tasker, Lesbian Mothers, Gay Fathers and Their Children: A Review, 26 Developmental and Behavioral Pediatrics 224 (2005) (finding children of same-sex parents exhibited the same typical adjustments related to peer relations as children of opposite-sex parents and therefore could not be said to fare worse based on their parents sexuality). Mental Health Social science studies also confirm that children of same-sex parents are just as psychologically healthy as children of opposite-sex parents. According to a nationally representative study, adolescents raised by same-sex and opposite-sex parents report similar levels of self-esteem and depression. See Wainright et al. at 1886. Other reliable studies corroborate these results. See Loes van Gelderen et al., Quality of Life of Adolescents Raised from Birth by Lesbian Mothers: The US National Longitudinal Family Study, 33 Journal of Developmental & Behavioral Pediatrics 1, 1 (2012) (concluding that [a]dolescent offspring in planned lesbian families do not show differences in [quality of life] when compared with a matched group of
11 adolescents reared in heterosexual families). As Dr. Lamb outlined in his comprehensive literature review of the social science evidence, numerous studies of children and adolescents raised by same-sex parents conducted over the past 25 years by respected researchers and published in peer-reviewed academic journals conclude that they are as successful psychologically, emotionally, and socially as children and adolescents raised by heterosexual parents. Lamb at 104. Similarly, surveys reveal no greater levels of anxiety or Attention Deficit Disorder (A.D.D.) among teenagers raised by same-sex parents than among those raised by opposite-sex parents. See Nanette Gartrell & Henny W. Bos, US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17Year-Old Adolescents, 126 Pediatrics 28 (2010).7 This social science evidence confirms the evidence presented at the trial and accepted by the district court in Perry. For example, based in part on the testimony of Dr. Lamb that social science studies demonstrate very conclusively that children who are raised by gay and lesbian parents are just as likely to be welladjusted as children raised by heterosexual parents, the district court found as a matter of fact that:
See also Rachel H. Farr et al., Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?, 14 Applied Developmental Science 164 (2010); Scott Ryan, ParentChild Interaction Styles between Gay and Lesbian Parents and Their Adopted Children, 3 Journal of GLBT Family Studies 105 (2007); Stephen Erich et al., A Comparative Analysis of Adoptive Family Functioning with Gay, Lesbian, and Heterosexual Parents and Their Children, 1 Journal of GLBT Family Studies 43 (2005) (all reporting similar findings).
12 [t]he gender of a childs parent is not a factor in a childs adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology. Perry v. Schwarzenegger, 704 F. Supp. 2d at 980. Early Sexual Activity The social science studies also demonstrate that teenagers raised by same-sex parents and those raised by opposite-sex parents engage in similar levels of teenage sexual activity. For instance, nationally representative studies show that similar proportions of teenagers raised by same-sex parents and by oppositesex parents have had sexual intercourse or a romantic relationship. See Charlotte J. Patterson & Jennifer L. Wainright, Adolescents with Same-Sex Parents: Findings from the National Longitudinal Study of Adolescent Health, in Adoption by Lesbians and Gay Men: A New Dimension in Family Diversity (David M. Brodzinsky & Adam Pertman eds., 2012). In fact, sexual behaviors reported by 17-year-olds raised by same-sex mothers indicated that the age at which they first engage in sexual intercourse was slightly older than those in a gender- and age-matched national sample of children raised by opposite-sex parents. See Nanette Gartrell et al., New Trends in Same-Sex Sexual Contact for American Adolescents, 41 Archives
13 of Sexual Behavior 5 (2012). Moreover, the odds of having a sexually transmitted disease, becoming pregnant, or impregnating someone were statistically similar. Id. And none of the children raised by samesex parents examined in the National Longitudinal Lesbian Family Study reported any physical or sexual abuse by a parent or caregiver. See Nanette Gartrell et al., Adolescents of the U.S. National Longitudinal Lesbian Family Study: Sexual Orientation, Sexual Behavior, and Sexual Risk Exposure, 40 Archives of Sexual Behavior 1199 (2011). Substance Abuse and Behavioral Problems Finally, social science studies confirm that children of same-sex parents are no more likely to abuse substances than children of opposite-sex parents. A nationally representative sample of adolescents living with female, same-sex parents reveals that the adolescents are similar to their counterparts raised by opposite-sex parents in terms of frequency of substance use (i.e., tobacco, alcohol, and marijuana), problems with substance use, and delinquent behavior. See Jennifer L. Wainright & Charlotte J. Patterson, Delinquency, Victimization, and Substance Use Among Adolescents with Female Same-Sex Parents, 20 Journal of Family Psychology 526 (2006). Furthermore, children of opposite-sex and same-sex parents report similar levels of problematic, rule-breaking, and inappropriately aggressive behaviors. See Gartrell & Bos. In sum, as the overwhelming body of social science research confirms, whether a child is raised by samesex or opposite-sex parents has no bearing on a childs
14 wellbeing.8 Instead, the consensus is that the key factors affecting child wellbeing are stable family environments and greater parental socioeconomic resources, neither of which is related to the sex or sexual orientation of a childs parents. See Rand D. Conger et al., Socioeconomic Status, Family Processes, and Individual Development, 72 Journal of Marriage & Family 685 (2010). As the district court in Perry concluded based on the testimony of Dr. Lamb and other social science evidence presented, [t]he factors that affect whether a child is well-adjusted are: (1) the quality of a childs relationship with his or her parents; (2) the quality of the relationship between a childs parents or significant adults in the childs life; and (3) the availability of economic and social resources. 704 F. Supp. 2d at 980. These factors indicate that in order to further enhance child outcomes and wellbeing, we should encourage stable and financially secure family unitsincluding same-sex parented familiesrather than exclude the hundreds of thousands of children living with same-sex couples from the stability and economic security that marriage provides.
Notwithstanding certain critics blanket dismissal of some of the studies underlying the social science research consensus, see, e.g., Brief for Social Science Professors as Amicus Curiae Supporting PetitionerHollingsworth, No. 12-144, and RespondentBLAG, No. 12-307 at 13-21 (U.S. Jan. 29, 2013), the ASAs review of the studies confirms that they are methodologically sound and conform to the highest standards of sociological research.
15 II. THE RESEARCH CLAIMED TO UNDERMINE THE CONSENSUS EITHER DOES NOT ADDRESS SAME-SEX PARENTS AND THEIR CHILDREN OR IS MISCHARACTERIZED The studies relied on by BLAG, the Proposition 8 Proponents, and their amici fail to support their claim that children fare better with opposite-sex parents than same-sex parents, because nearly all of the studies fail to examine same-sex parents or their children. One of the amici supporting BLAG and the Proposition 8 Proponents in the circuit courts conceded the importance of apples-to-apples comparisons and dismissed studies that rely on inappropriate comparisons (i.e., comparing children raised by samesex couples to children raised by divorced mothers). Brief for American College of Pediatricians as Amicus Curiae Supporting IntervenorDefendantAppellant at 4-5, Windsor v. United States, 699 F.3d. 169 (2d Cir. 2012). This critique of inappropriate comparisons is even truer when the studies do not address same-sex parents at all. Moreover, some of the findings in the studies are mischaracterized by the amici supporting BLAG and the Proposition 8 Proponents and, in fact, affirm that family stability and greater parental socioeconomic resources are the principal factors affecting child wellbeing. In an effort to undermine the social science consensus, several amici rely heavily on one study conducted by Mark Regnerus. See Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Survey, 41 Social Science Research 752 (2012) (Regnerus 2012a). Critically, for multiple
16 reasons and as Regnerus acknowledges, his study did not examine, and provides no conclusions regarding, the wellbeing of children who lived with and were raised by same-sex parents. A) THE REGNERUS STUDY DOES NOT SUPPORT CONCLUSIONS REGARDING THE IMPACT OF BEING RAISED BY SAME-SEX PARENTS The Regnerus studythe principal study relied on by the amici of BLAG and the Proposition 8 Proponentsdid not specifically examine children raised by same-sex parents, and provides no support for the conclusions that same-sex parents are inferior parents or that the children of same-sex parents experience worse outcomes. The Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents First, the Regnerus study does not specifically examine children born or adopted into same-sex parent families, but instead examines children who, from the time they were born until they were 18 or moved out, had a parent who at any time had a same-sex romantic relationship. Regnerus 2012a at 752. As Regnerus noted, the majority of the individuals characterized by him as children of lesbian mothers and gay fathers were the offspring of failed oppositesex unions whose parent subsequently had a same-sex relationship. Id. In other words, Regnerus did not study or analyze the children of two same-sex parents.
17 Second, when the Regnerus study compared the children of parents who at one point had a same-sex romantic relationship, most of whom had experienced a family dissolution or single motherhood, to children raised by two biological, married opposite-sex parents, the study stripped away all divorced, single, and stepparent families from the opposite-sex group, leaving only stable, married, opposite-sex families as the comparison. Id. at 757 (the comparison group consisted of individuals who [l]ived in intact biological famil[ies] (with mother and father) from 0 to 18, and parents are still married at present). Thus, it was hardly surprising that the opposite-sex group had better outcomes given that stability is a key predictor of positive child wellbeing. By so doing, the Regnerus study makes inappropriate apples-to-oranges comparisons. Third, Regneruss first published analysis of his research data failed to consider whether the children lived with, or were raised by, the parent who was, at some point, apparently involved in a romantic relationship with someone of the same sex and that same-sex partner. Id. at 756. Instead, Regnerus categorized children as raised by a parent in a samesex romantic relationship regardless of whether they were in fact raised by the parent and the parents same-sex romantic partner and regardless of the amount of time that they spent under the parents care.9 As a result, so long as an adult child believed
Although the data used by Regnerus distinguished between children who had lived with their parent while the parent was in a same-sex romantic relationship and children who had not,
18 that he or she had had a parent who had a relationship with someone of the same sex, then he or she was counted by Regnerus as having been raised by a parent in a same-sex relationship.10 Fourth, in contrast to every other study on same-sex parenting, Regnerus identified parents who had purportedly engaged in a same-sex romantic relationship based solely on the childs own retrospective report of the parents romantic relationships, made once the child was an adult. This unusual measurement strategy ignored the fact that the child may have limited and inaccurate recollections of the parents distant romantic past. Id. Finally, the study fails to account for the fact that the negative outcomes may have been caused by other childhood events or events later in the individuals
Regnerus 2012a at 757, Regnerus classified children in his study and defined them as being raised by Lesbian Mothers and Gay Fathers without regard to those differences. Id. at 756-57 (noting that 73 total children responded as having a father in a same-sex relationship and including all 73 in his analysis, notwithstanding that only 42% of the respondents reported living with the father while he was in a same-sex romantic relationship, and only 23% percent reported living with him and his partner for at least 4 months). Regnerus notes that he classified children as being raised by Lesbian Mothers and Gay Fathers regardless of any other household transition. Id. at 757. Indeed, the Regnerus study described itself as a study of young adults rather than children or adolescents, with particular attention paid to reaching ample numbers of respondents who were raised by parents that had a same-sex relationship. Id. at 755.
10
19 adult life, particularly given that the vast majority (thirty-seven of forty) of the outcomes measured were adult and not childhood outcomes.11 Factors other than same-sex parenting are likely to explain these negative outcomes in the Regnerus study. Regnerus himself concludes that I am thus not suggesting that growing up with a lesbian mother or gay father causes suboptimal outcomes because of the sexual orientation or sexual behavior of the parent. Id. at 766. In sum, by conflating (1) children raised by samesex parents with (2) individuals who reportedly had a parent who had a romantic relationship with someone of the same sex, and referring to such individuals as children of lesbian mothers or gay fathers, the Regnerus study obscures the fact that it did not specifically examine children raised by two same-sex parents. Accordingly, it cannot speak to the impact of same-sex parenting on child outcomes. As discussed above, amici in support of BLAG and the Proposition 8 Proponents have themselves rejected such inappropriate comparisons between stable and unstable family structures, see Brief for American College of Pediatricians at 4-5, as did the district court in Perry, see 704 F.Supp. 2d at 981 (studies that make apples-to-oranges comparisons are of no moment).
Regnerus himself recognizes that the survey data he relied uponthe New Family Structures Study (NFSS)is poised to address [questions] about the lives of young adults between the ages of 18 and 39, but not about children or adolescents. Regnerus 2012a at 755.
11
20 The Re-Stated Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents Regnerus acknowledged the merit of a series of scholarly critiques regarding underlying aspects of his research and subsequently published a second analysis of the data. Among others, a group of over one hundred social scientists signed an article faulting the Regnerus study for failing to take account of family structure and family instability. Gary J. Gates et al., Letter to the Editor and Advisory Editors of Social Science Research, 41 Social Science Research 1350 (2012). The article specifically criticized the Regnerus studys failure to distinguish between the impact of having a parent who has a continuous same-sex relationship from the impact of having same-sex parents who broke-up from the impact of living in a same sex stepfamily from the impact of living with a single parent who may have dated a same-sex partner. Id. Regnerus tried to remedy the fact that his initial published research did not analyze whether the children had actually lived with the parent who, according to the adult child, had at some point, been romantically involved with someone of the same sex. See Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41 Social Science Research 1367, 1369 (2012) (Regnerus 2012b). Nevertheless, Regneruss follow-up analysis does not resolve the problems inherent in his initial analysis and contains many of the same shortcomings. The follow-up analysis maintained the flawed and extremely broad definition of what constitutes lesbian
21 mothers and gay fathersa mother or father who ever had a romantic relationship with someone of the same-sex during the period from the birth of the child until the child turned eighteen (or left home to be on their own). Id. at 1368. Accordingly, Regneruss analysis continues to ignore stability as a factor in child outcomesa factor that explains many of the differences among its subjects. And Regnerus still fails to account for the duration of time spent with a mother who was romantically involved with a same-sex partner and that partner. See id. at 1372. Only two of the eighty-five children who at some point lived with a mother who was romantically involved with another woman reported that they did so for the entire duration of their childhood. Finally, Regneruss follow-up analysis is still not reflective of same-sex parenting because Regnerus could not remedy the fact that he recorded experiences that occurred either during the time the child lived with his or her mothers same-sex partner or during another childhood time period. If any conclusion can be reached from Regneruss study, it is that family stability is predictive of child wellbeing. As Regnerus himself notes, family structure (for instance whether the family has a single parent or two parents), matters significantly to child outcomes. Regnerus 2012a at 761. As the social science consensus described in Part I demonstrates, the evidence regarding children raised by same-sex parents overwhelmingly indicates that children raised by such families fare just as well as children raised by oppositesex parents, and that children raised by same-sex parents are likely to benefit from the enhanced stability the institution of marriage would provide to their parents and families. All told, the Regnerus
22 study, even as revised, does not undermine the consensus that children raised by same-sex parents fare just as well as those raised by opposite-sex parents. B) THE REMAINING STUDIES CITED BY BLAG, THE PROPOSITION 8 PROPONENTS, AND THEIR AMICI DO NOT ADDRESS SAME-SEX PARENTS AND THEREFORE DO NOT UNDERMINE THE CONSENSUS The other studies cited by BLAG, the Proposition 8 Proponents, and their amici in no way undermine the consensus of social science research that children of same-sex couples fare just as well as those of oppositesex couples. In continued apples-to-oranges fashion, they rely on studies analyzing, inter alia, stepparents, single parents, and adoptive parentsnone of which address same-sex parents or their childrenin order to make speculative statements about the wellbeing of children of same-sex parents. Such inappropriate, methodologically baseless comparisons provide no factual support or justification for DOMA or Proposition 8. Instead, the studies confirm that parental stability and higher parental socioeconomic resources are the key drivers of positive child outcomes. Studies Regarding the Impact of Stepparents, Divorced Parents, or Single parents BLAG, the Proposition 8 Proponents, and their amici rely on studies examining the impact of stepparents, divorced parents, and single parents on child wellbeing outcomes, and use these studies to
23 argue that two biological parents are necessary to positive child outcomes. See Brief for Matthew B. OBrien as Amicus Curiae Supporting PetitionerHollingsworth at 17, No. 12-144, and RespondentBLAG, No. 12-307 (U.S. Jan. 29, 2013); Brief for Social Science Professors as Amicus Curiae, Nos. 12-144, 12-307, at 5 (U.S. Jan. 29, 2013). These studies in no way examined same-sex parents or their impact on child wellbeing. See, e.g., Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent 38 (1994) (comparing disrupted families with intact families, but nowhere discussing same-sex parents ); Marilyn Coleman et al., Reinvestigating Remarriage: Another Decade of Progress, 62 Journal of Marriage & Family 1288 (2000) (comparing stepparents to nondivorced parents, but not addressing same-sex parents); Kristen Anderson Moore et al., Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, Child Trends Research Brief 1-2, 6 (2002), http://www. childtrends.org/files/marriagerb602.pdf (comparing the wellbeing of children raised by stepparents and single parents to that of children raised by stable, two parent families); Mark V. Flinn et al., Growth and Fluctuating Assymetry of Stepchildren, 20 Evolutionary Human Behavior 465 (1999) (analyzing the wellbeing of children raised by stepfathers, but not addressing same-sex parents); Nicholas H. Wolfinger, Understanding the Divorce Cycle: The Children of Divorce in Their Own Marriages (2005) (analyzing the impact of divorce, but not addressing same-sex parents). Accordingly, they cannot be relied upon as scientific evidence regarding the effects of same-sex parenting.
24 Aside from not specifically addressing same-sex parents, the studies regarding stepparents and divorce indicate that child outcomes are, on average, not as positive because of the disruption caused by divorce or the introduction of a new parent into the family, but do not indicate that the source of the negative outcomes is related to the fact that the stepparent is not biologically related to the child. See, e.g., Moore at 1 (Divorce is linked to academic and behavior problems among children, including depression, antisocial behavior, impulsive/hyperactive behavior, and school behavior problems. Mental health problems linked to marital disruption have also been identified among young adults.). Therefore, the argument that research regarding stepparents is relevant to same-sex parents because at least one of the same-sex parents is not the biological parent, and is therefore step is misplaced. In a planned, same-sex parent family, both parents have brought the child into the family and raised the child from infancy. Moreover, in many states, both parents in same-sex parent families are legal parents to the children. Accordingly, all of the studies cited by BLAG, the Proposition 8 Proponents, and their amici analyzing the effects of single parents and stepparents are mischaracterized by them. The research on children in divorced, single parent, and stepparent families simply says nothing about the wellbeing of children raised by same-sex parents. As the district court determined based on the evidence introduced at trial in the Perry case, [s]tudies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents
25 in stable, long-term relationships. 704 F. Supp. 2d at 981. In fact, the authors of one of the principal studies relied on by BLAGthe Child Trends studyhave publicly responded that their study focused on children being raised in families headed by single parents, stepparents, and married, opposite-sex parentsnot same-sex parents. See Moore at Introductory Disclaimer. The Child Trends authors expressly disclaimed BLAGs misuse of their study, explaining that no conclusions can be drawn from this research about the wellbeing of children raised by same-sex parents or adoptive parents. Id. See also Chris Johnson, Anti-Gay Briefs Mischaracterized Study, Washington Blade (Jan. 25, 2013), http://www.washingtonblade.com/ 2013/01/25/anti-gaylegal-briefs-mischaracterized-parenting-study. The Child Trends study concluded something entirely different than what was claimed by BLAG. The study concluded that when researchers have compared marriage to cohabitation, they have found that marriage is associated with better outcomes for children. Moore at 2. Extending this logic to the context of same-sex couples and their children, recognition of marriage rights of such couples could improve, not impair, the wellbeing of children being raised by currently unmarried same-sex parents. See also Wendy D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families 65 Journal of Marriage & Family 876 (2003) (noting that marriage provides enhanced socioeconomic resources to families, improving child wellbeing outcomes); Pamela J. Smock
26 & Wendy D. Manning, Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy, 26 Law & Policy 87, 94 (2004) (discussing the role of marriage in contributing to the stability of a family). Studies Purporting to Examine the Effect of Two Biological Parents The amici in support of DOMA and Proposition 8 cite studies purporting to show the superiority of biological parents over adoptive parents, see Brief for Social Science Professors at 14 n.6 (citing Brent Miller et al., Comparisons of Adopted and Non-Adopted Adolescents in a Large, Nationally Representative Sample, 71 Child Development 1458 (2000)), and a publication by an advocacy organization purporting to show problems for children conceived by donor sperm, see Brief for Coalition for the Protection of Marriage as Amicus Curiae Supporting PetitionerHollingsworth at 23, No. 12-144, and RespondentBLAG, No. 12-307 (U.S. Jan. 29, 2013) (citing Institute for American Values (Elizabeth Marquardt, Norval D. Glenn, & Karen Clark, co-investigators), My Daddys Name is Donor: A New Study of Young Adults Conceived Through Sperm Donation (2010)). As with the rest of their studies, these studies do not examine same-sex parents or their children. It is hard to see the relevance of these citations to the issue of marriage rights for same-sex couples given that both adoption and assisted reproduction are widely used by heterosexual couples, as reflected in the very sources cited in support of DOMA and Proposition 8.
27 In any case, there is no basis for the assertion that adoption or assisted reproduction leads to negative child outcomes. In fact, studies actually indicate that children raised in adoptive families since infancy or in families utilizing assisted reproduction techniques fare just as well as other children. See also Gartrell & Bos at 33-34 (showing that adolescents who have been raised since birth in planned lesbian families demonstrate healthy psychological adjustment and that they in fact demonstrated higher levels of social, school/academic, and total competence than gendermatched normative samples of American teenagers); Brent Miller et al., Comparisons of Adopted and NonAdopted Adolescents In A Large, Nationally Representative Sample, 71 Child Development 1458 (2000) (finding little difference between adoptees and non-adoptees who live in two-parents families, and finding, to the extent there was any difference, that the difference occurs in children who were adopted later in their childhood). As put succinctly by the district court in Perry, [t]he genetic [or biological] relationship between a parent and a child is not related to a childs adjustment outcomes. 704 F.Supp. 2d at 981.12
The amici of BLAG and Proposition 8 Proponents cite to the assertion that children have a right to their biological parents because they allegedly fare better with such parents. Margaret Somerville, Childrens Human Rights to Natural Biological Origins and Family Structure, 1 International Journal of Jurisprudence of the Family 35 (2010). However, when this same opinion was offered to the Iowa Supreme Court in its evaluation of marriage rights for same-sex couples, it was dismissed as being largely unsupported by reliable scientific studies. Varnum v. Brien, 763 N.W.2d 862, 899 (Iowa 2009).
12
28 Studies Regarding Gender Roles in Opposite-Sex Family The amici also rely on a number of studies that examine the parental roles of mothers and fathers within the context of opposite-sex parent families and claim that these studies demonstrate that childrens wellbeing depends on having both a male and female parent. See Brief for Coalition for Protection of Marriage at 33; Brief for Social Science Professors at 7.13 But these studies do not support this suggestion and reliance on them is misplaced for multiple reasons. First, like the other studies cited by BLAG, the Proposition 8 Proponents, and their amici, these studies do not examine the parenting and disciplinary dynamics of same-sex parents. Without any social science evidence to support their conclusion, the amici ask the Court to deduce that a child raised by two gay husbands would not receive the necessary neural development or improvement in emotional and communicative skills. No such conclusion is proper based on these or any studies. Second, BLAG, the Proposition 8 Proponents, and their amici ignore the fact that the research regarding different parenting
Citing C.A. Nelson & M. Bosquet, Neurobiology of Fetal and Infant Development: Implications for Infant Mental Health, in Handbook of Infant Mental Health 37-59 (C.H. Zeanah Jr. ed., 2d ed. 2000); Eleanor Maccoby, The Two Sexes 266-67 (1998); Paul R. Amato & Fernando Rivera, Paternal Involvement and Childrens Behavior Problems, 61 Journal of Marriage & Family 375 (1999); Shmuel Shulman & Moshe M. Klein, Distinctive Role of the Father in Adolescent Separation-Individuation, 62 New Directions for Child & Adolescent Development 41, 53 (1993).
13
29 roles and styles indicates that those roles are relative and nothing in the research indicates that same-sex couples are not able to provide such relative parenting dynamics. See David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood & Marriage Are Indispensable for the Good of Children & Society 147 (1996) (noting that among same-sex parents, one partner commonly fills the male-instrumental role while the other fills the female-expressive role in rearing their children). Third, the research also indicates that there is a range of parenting styles, that no couples parent identically, and that children do not need their parents to adopt particular parenting styles to be well adjusted. See Paul R. Amato & Frieda Fowler, Parenting Practices, Child Adjustment, and Family Diversity, 64 Journal of Marriage & Family 703, 714 (2002) (When parents spend time with children, help with homework, talk about problems, provide encouragement, and show affection, children do well.). Finally, arguments based on rigid gender roles should be rejected as this Court has declined to rely upon outdated misconceptions and loose-fitting characterizations regarding gender. See Craig v. Boren, 429 U.S. 190, 198-99 (1976); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ([W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group[.]). As the district court in Perry concluded after examining the social science evidence presented, including the testimony of Dr. Lamb, [c]hildren do not need to be raised by a male parent and a female parent to be welladjusted, and having both a male and a female parent
30 does not increase the likelihood that a child will be well-adjusted. 704 F. Supp. 2d at 981. Nor do the studies relied on by the amici that examine the role of absentee fathers, see, e.g., Popenoe at 146, establish that, within the context of same-sex parenting, fathers are necessary to the childs wellbeing. In fact, the research regarding the negative impact of absentee fathers, such as David Popenoes, has nothing to do with the unique contributions of fathers, but rather with the loss of a parental relationship. Id. at 139 (Much of what fathers contribute to child development, of course, is simply the result of being a second adult in the home. Other things being equal, two adults are far better than one in raising children. As the distinguished developmental psychologist Urie Bronfenbrenner has noted, the quality of interaction between principal caregiver and child depends heavily on the availability and involvement of another adult, a third party who assists, encourages, spells off, gives status to, and expresses admiration and affection for the person caring for and engaging in joint activity with the child. (internal quotations omitted)). In sum, the studies relied on by BLAG, the Proposition 8 Proponents, and their amici examine child outcomes within the context of opposite-sex relationships, and do not address the impact of samesex parents on child wellbeing. These studies do not undermine the social science consensus, supported by the most reliable studies available, that children raised by same-sex parents fare just as well as children raised
31 by opposite-sex parents across a broad spectrum of indicators.14 CONCLUSION The social science consensus is both conclusive and clear: children fare just as well when they are raised by same-sex parents as when they are raised by oppositesex parents. This consensus holds true across a wide range of child outcome indicators and is supported by numerous nationally representative studies. Accordingly, assuming that either DOMA or Proposition 8 has any effect on whether children are raised by opposite-sex or same-sex parents, there is no basis to prefer opposite-sex parents over same-sex parents and neither DOMA nor Proposition 8 is justified. The research supports the conclusion that extension of marriage rights to same-sex couples has the potential to improve child wellbeing insofar as the institution of marriage may provide social and legal support to families and enhances family stability, key drivers of positive child outcomes. The Regnerus study and other studies relied on by BLAG, the Proposition 8 Proponents, and their amici provide no basis for their arguments, because they do not directly examine the wellbeing of children raised by same-sex parents.
A handful of the studies cited by BLAG, the Proposition 8 Proponents, and their amici appear based on their titles to study same-sex parents and their children. They do not. For example, the Brief for Social Science Professors cites to a sociologist who critiques marriage rights for same-sex couples, but that critique is not grounded in scientific evidence, but is simply an opinion essay. Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Society 27 (2004).
14
32 These studies therefore do not undermine the consensus from the social science research and do not establish a common sense basis for DOMA or Proposition 8. The decisions of both the United States Courts of Appeals for the Second and Ninth Circuits should be affirmed. Respectfully submitted, CARMINE D. BOCCUZZI, JR. Counsel of Record for Amicus Curiae SCOTT THOMPSON MARK LIGHTNER CLEARY GOTTLIEB STEEN & HAMILTON LLP ONE LIBERTY PLAZA NEW YORK, NY 10006 (212) 225-2000 cboccuzzi@cgsh.com February 28, 2013
Exhibit 12
Nos. 12-144, 12-307

DENNIS HOLLINGSWORTH, ET AL., Petitioners v. KRISTIN M. PERRY, ET AL., Respondents. UNITED STATES OF AMERICA, Petitioner, v. EDITH SCHLAIN WINDSOR AND BIPARTISAN LEGAL ADVISORY GROUP, Respondents.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE NINTH AND SECOND CIRCUITS
In the
BRIEF OF CONSTITUTIONAL LAW SCHOLARS BRUCE ACKERMAN, ASH BHAGWAT, LEE BOLLINGER, ERWIN CHEMERINSKY, MICHAEL C. DORF, LEE EPSTEIN, BARRY FRIEDMAN, JOHN C. JEFFRIES, JR., LAWRENCE LESSIG, WILLIAM MARSHALL, FRANK MICHELMAN, JANE S. SCHACTER, SUZANNA SHERRY, GEOFFREY R. STONE, DAVID STRAUSS, LAURENCE TRIBE, AND WILLIAM VAN ALSTYNE AS AMICI CURIAE ADDRESSING THE MERITS AND SUPPORTING AFFIRMANCE GEOFFREY R. STONE THE UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th Street Chicago, IL 60637 (773) 702-4907 gstone@uchicago.edu LORI ALVINO MCGILL Counsel of Record JESSICA E. PHILLIPS STEPHEN P. BARRY DOUGLAS M. BUSHEY LATHAM & WATKINS LLP 555 11th Street, NW Suite 1000 Washington, DC 20004 (202) 637-2319 lori.alvino.mcgill@lw.com
i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................... ii INTEREST OF AMICI CURIAE .................................. 1 SUMMARY OF ARGUMENT......................................... 3 ARGUMENT....................................................................... 5 THE CONSTITUTION REQUIRES HEIGHTENED JUDICIAL SCRUTINY OF LAWS THAT DISCRIMINATE AGAINST GAY AND LESBIAN PERSONS ............................. 5 A. Gay Men And Lesbians Have Faced A Long History Of Discrimination....................... 8 B. Sexual Orientation Is Irrelevant To An Individuals Ability To Contribute To Society .............................................................. 13 C. Gay Men And Lesbians Lack Sufficient Political Power To Protect Themselves Against Invidious Discrimination .................. 16 D. Sexual Orientation Is An Immutable Or Defining Characteristic ................................ 23 E. Neither Baker v. Nelson Nor Romer v. Evans Nor Lawrence Forecloses Application Of Heightened Scrutiny ............. 28 CONCLUSION ................................................................. 33
ii TABLE OF AUTHORITIES Page(s) CASES Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ............................................. 6, 7, 18 Baker v. Nelson, 409 U.S. 810 (1972) ................................................. 5, 28 Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986) ................................................... 12 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 2004 (1990) ................................................... 31 Boutilier v. INS, 387 U.S. 118 (1967) ..................................................... 11 Bowen v. Gilliard, 483 U.S. 587 (1987) ................................................. 7, 24 Bowers v. Hardwick, 478 U.S. 186 (1986) ..................................................... 12 Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................... 5 Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 130 S. Ct. 2971 (2010) ................................................. 27
iii TABLE OF AUTHORITIESContinued Page(s) City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ....................................... 6, 7, 13, 15 City of New Orleans v. Dukes, 427 U.S. 297 (1976) ..................................................... 24 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ............................................... 18, 32 Clark v. Jeter, 486 U.S. 456 (1988) ....................................................... 6 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ............................................. 14 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)......................................... 31 Craig v. Boren, 429 U.S. 190 (1976) ..................................................... 18 Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994), revd on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001 (1996) ... 14, 31 Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) ........................................ 24
iv TABLE OF AUTHORITIESContinued Page(s) Frontiero v. Richardson, 411 U.S. 677 (1973) ............. 7, 13, 16, 18, 20, 24, 26, 29 Golinski v. United States Office of Personal Management, 824 F. Supp. 2d 968 (N.D. Cal.), petition for cert. filed (U.S. July 3, 2012) (No. 12-16)............. 9, 25 Graham v. Richardson, 403 U.S. 365 (1971) ....................................................... 6 Gregory v. Ashcroft, 501 U.S. 452 (1991) ..................................................... 14 Hernandez v. Robles, 855 N.E. 2d 1 (N.Y. 2006) .......................................... 14 Hicks v. Miranda, 422 U.S. 332 (1975) ..................................................... 29 High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................................ 27, 31 Howard v. Child Welfare Agency Review Board, No. CV 1999-9881, 2004 WL 3154530 (Ark. Cir. Dec. 29, 2004), affd, 238 S.W.3d 1 (Ark. 2006) ............................................................................. 11 Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) ..................................................... 28
v TABLE OF AUTHORITIESContinued Page(s) Jantz v. Muci, 759 F. Supp. 1543 (D. Kan. 1991), revd on other grounds, 976 F.2d 623 (10th Cir. 1992), cert. denied, 508 U.S. 952 (1993) ............................... 14 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ...................................... 31 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) ................................... 21, 25 Lalli v. Lalli, 439 U.S. 259 (1978) ..................................................... 13 Lawrence v. Texas, 539 U.S. 558 (2003) ................... 5, 12, 27, 28, 29, 30, 32 Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004) .................................... 31 Loving v. Virginia, 388 U.S. 1 (1967) ............................................... 4, 17, 23 Lyng v. Castillo, 477 U.S. 635 (1986) ................................................. 7, 24 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ............................................. 25 Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) ................................................. 7, 14
vi TABLE OF AUTHORITIESContinued Page(s) Mathews v. Lucas, 427 U.S. 495 (1976) ..................................................... 25 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) ................................................. 6, 29 Nyquist v. Mauclet, 432 U.S. 1 (1977) ..................................................... 7, 24 Opinion of the Justices, 525 A.2d 1095 (N.H. 1987) ......................................... 11 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ................................ 27, 31 Pedersen v. Office of Personal Management, 881 F. Supp. 2d 294 (D. Conn. 2012) .................... 9, 19 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) .................................... 31 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), affd, 671 F.3d 1052 (9th Cir. 2012) ...................................... 9 Plyler v. Doe, 457 U.S. 202 (1982) ................................................. 6, 24 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .................................. 31
vii TABLE OF AUTHORITIESContinued Page(s) Romer v. Evans, 517 U.S. 620 (1996) ............................................... 29, 30 Rowland v. Mad River Local School District, 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009 (1985) ..................................................... 9 Rowland v. Mad River Local School District, 470 U.S. 1009 (1985) ............................................. 21, 28 Scarbrough v. Morgan County Board of Education, 470 F.3d 250 (6th Cir. 2006) ...................................... 31 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ...................................... 24 Walmer v. Department of Defense, 52 F.3d 851 (10th Cir. 1995) ...................................... 32 Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989), cert. denied, 498 U.S. 957 (1990) ............................................... 14, 25 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ....................................................... 5 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ................................................... 31
viii TABLE OF AUTHORITIESContinued Page(s) FEDERAL CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const. amend. XIV, 1 .............................................. 5 8 U.S.C. 1182(a)(4) (1982) .............................................. 11 10 U.S.C. 654(b) (2006), repealed by Pub. L. No. 111-321, 2(f)(1)(A), 124 Stat. 3515 (2010) ............................................................................ 10 Immigration Act of 1917, Pub. L. No. 64-301, 3, 39 Stat. 874 (1917) ...................................................... 10 Immigration Act of 1990, Pub. L. No. 101-649, 601, 104 Stat. 4978 (1990) ....................................... 11 Immigration and Nationality Act, amended October 3, 1965, Pub. L. No. 89-236, 15(b), 79 Stat. 911 .................................................................. 10 STATE STATUTORY PROVISIONS Fla. Stat. 63.042(3) (2003) .............................................. 11 Miss. Code Ann. 93-17-3(2) (2000) ................................ 11 Utah Code Ann. 78-30-1(3) (2006) ................................ 11
ix TABLE OF AUTHORITIESContinued Page(s) OTHER AUTHORITIES Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985) ...................................... 23 American Psychiatric Assn, Position Statement On Homosexuality and Civil Rights, 131 Am. J. Psychiatry 436 (1974) .................................... 14 Jorge L. Carro, From Constitutional Psychopathic Inferiority to AIDS: What is in the Future for Homosexual Aliens?, 7 Yale L. & Poly Rev. 201 (1989) ............................... 11 George Chauncey, Why Marriage? The History Shaping Todays Debate Over Gay Equality (2004) ............................................................................ 10 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) ........................ 7, 23 Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (June 2, 1998) .............................................................. 10 Exec. Order No. 9981, 3 C.F.R. 722 (1943-1948) ........... 22 Nathaniel Frank, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America (2009) ........................................................... 10
x TABLE OF AUTHORITIESContinued Page(s) Gary Gates & Frank Newport, Gallup Politics, Special Report: 3.4% of U.S. Adults Identify as LGBT (Oct. 18, 2012), http://www.gallup.com/poll/158066/specialreport-adults-identify-lgbt.aspx .............................. 21 Evan Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection (1999) .............................................................................. 8 Gregory M. Herek et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults, 7 Sex Res. Soc. Policy 176 (2010) ............... 26 House Press Gallery, Demographics, http://housepressgallery.house.gov/member -data/demographics (last visited Feb. 27, 2013) ............................................................................. 17 David R. Sands, 113th Congress Mirrors Increasingly Diverse U.S., Wash. Times, Jan. 7, 2013, available at http://www.washingtontimes.com/news/201 3/jan/7/113th-congress-mirrors-increasinglydiverse-us/#ixzz2KHEmHzJj ................................... 21 Jane S. Schacter, Ely at the Altar: Political Process Theory Through the Lens of the Marriage Debate, 109 Mich. L. Rev. 1363 (2011) ...................................................................... 19, 20
xi TABLE OF AUTHORITIESContinued Page(s) Laurence H. Tribe, American Constitutional Law (2d ed. 1988)........................................................ 14 Letter from United States Government Accountability Office to Hon. Tom Harkin et al., Sexual Orientation and Gender Identity Employment Discrimination: Overview of State Statutes and Complaint Data (Oct. 1, 2009), available at http://www.gao.gov/new.items/d10135r.pdf........... 19 Richard A. Posner, Sex and Reason (1992)..................... 8 Resolution of the American Psychological Association (1975) ...................................................... 14 Statement by the President on the Objectives of the Civil Rights Bill, 1957 Pub. Papers 545 (July 16, 1957) ............................................................. 22 United States Senate, Ethnic Diversity in the Senate, http://www.senate.gov/artand history/history/common/briefing/minority_ senators.htm (last visited Feb. 27, 2013) ................ 17 United States Senate, Women in the Senate, http://www.senate.gov/artandhistory/ history/common/briefing/women_senators.h tm (last visited Feb. 27, 2013) .................................. 17
1 INTEREST OF AMICI CURIAE Amici are constitutional law scholars who teach and write in the field. Amici have studied, written scholarly commentary on, and have a common professional interest in one of the issues presented in these cases: Whether a classification based on sexual orientation triggers heightened scrutiny under this Courts equal protection jurisprudence. Amici are the following scholars 1: Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School; Ashutosh Bhagwat , Professor of Law, University of California at Davis School of Law; Lee Bollinger, President, Columbia University; Erwin Chemerinsky, Founding Dean, Distinguished Professor of Law, Professor of Political Science, University of California, Irvine School of Law; Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell University Law School; Lee Epstein, Provost Professor of Law and Political Science, Rader Family Trustee Chair in Law, University of Southern California Gould School of Law; Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law;
1 Amici appear in their individual capacities; institutional affiliations are listed here for identification purposes only. All parties consent to the filing of this brief. No counsel for a party authored this brief in whole or in part or made a monetary contribution intended to fund the preparation or submission of this brief.
2 John C. Jeffries, Jr., David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law; Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School; William Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law; Frank Michelman, Robert Walmsley University Professor, Emeritus, Harvard Law School; Jane S. Schacter, William Nelson Cromwell Professor of Law, Stanford Law School; Suzanna Sherry, Herman O. Loewenstein Professor of Law, Harvie Branscomb Distinguished University Professor, Vanderbilt Law School; Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, University of Chicago Law School; David Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School; Laurence Tribe, Carl M. Loeb University Professor, Harvard University; Professor of Constitutional Law, Harvard Law School; William Van Alstyne, William R. and Thomas L. Perkins Professor Law, Emeritus, Duke University School of Law.
3 SUMMARY OF ARGUMENT For decades, this Court has considered four factors in determining whether a law that discriminates against any particular group should be tested by heightened judicial scrutiny: (1) whether the group has experienced a history of invidious discrimination; (2) whether the defining characteristic of the group is relevant to ones ability to contribute to society; (3) whether the group can effectively protect itself against discrimination through the political process; and (4) whether an individual can, without sacrificing a core aspect of her identity, effectively opt-out of the group. Applying those factors, classifications based on sexual orientation clearly warrant heightened scrutiny. 1. It is beyond question that gay men and lesbians have suffered a history of purposeful discrimination, both private and legal. They have been ostracized, humiliated, prosecuted, denied both private and government employment, and denied even the right to form a family. Few groups in American history have experienced such persistent and pervasive discrimination. 2. A persons sexual orientation is irrelevant to her ability to contribute to society. Sexual orientation is not in any way a disability that renders an individual less capable of being a lawyer, doctor, policeman, parent, teacher, plumber, or judge. It is a classic example of a personal characteristic that has no legitimate bearing on ones competence, skill, or value as a human being. 3. Gay and lesbian individuals have limited ability to protect themselves through the political process against continued public and private discrimination.
4 As an initial matter, this Courts decisions do not support BLAGs suggestion that relative political power is a particularly weighty factor in the analysis. In any event, the limited political power of gay and lesbian persons weighs in favor of applying heightened scrutiny here. Although there have been some recent successes in a few jurisdictions in the struggle for equal rights for gay and lesbian individuals, attempts to secure federal and state antidiscrimination legislation often have failed, and many recent strides toward equality have been swiftly rolled back by aggressive ballot initiatives. The barriers to gay and lesbian persons achieving equal respect, equal dignity, and equal rights through the political process remain daunting, and private discrimination and hostility are still often both widespread and fierce. Against the backdrop of the nations history of discrimination against gay and lesbian persons, this Courts decisions teach that the limited and recent progress achieved by this group does not in any way preclude heightened scrutiny of laws that discriminate on the basis of sexual orientation. In Loving v. Virginia, this Court unanimously applied strict scrutiny to a law that prohibited interracial marriage, after observing that fourteen states had repealed their anti-miscegenation statutes in the fifteen years leading up to that decision. 388 U.S. 1, 6 n.6 (1967). The Court also extended heightened scrutiny to sex-based classifications at a time when Congress had recently enacted several statutory prohibitions on sex-based discrimination, including the Equal Rights Amendment of 1972. In the same vein, a few scattered victories in a handful of states do not preclude heightened scrutiny
5 for laws that discriminate against gay and lesbian individuals today. 4. Gay and lesbian individuals share a common immutable characteristic, both because sexual orientation is fundamental to their identity, Lawrence v. Texas, 539 U.S. 558, 576-77 (2003), and because ones sexual orientation is not changeable through conscious decision, therapeutic intervention or any other method. Pet. App. 231a. Finally, there is no stare decisis impediment to applying heightened scrutiny to laws that discriminate against gay and lesbian individuals. Neither the summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), nor the Courts more recent decisions, addressed the appropriate level of scrutiny to apply to laws that discriminate against gay and lesbian persons. Accordingly, this Court should apply the traditional four-factor test and hold that heightened scrutiny applies to laws that discriminate on the basis of sexual orientation. ARGUMENT THE CONSTITUTION REQUIRES HEIGHTENED JUDICIAL SCRUTINY OF LAWS THAT DISCRIMINATE AGAINST GAY AND LESBIAN PERSONS The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws. 2 U.S. Const. amend. XIV, 1.
2 The equal-protection component of the Fifth Amendment is identical to and coextensive with the Fourteenth Amendments guarantee. See Buckley v. Valeo, 424 U.S. 1, 93 (1976) (Equal
6 Laws that distinguish among individuals in the distribution of benefits or burdens generally are presumed to be valid, and will be sustained, if they are rationally related to a legitimate [government] interest. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). But that general rule gives way when the law in question classifies based on factors that reflect prejudice and antipathya view that those in the burdened class are not as worthy or deserving as others. Id. Legislation predicated on such prejudice is . . . incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). Accordingly, this Court has held that any law that classifies on the basis of such a characteristic must be tested by heightened judicial scrutiny in order to pass constitutional muster. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (race); Graham v. Richardson, 403 U.S. 365 (1971) (alienage); Clark v. Jeter, 486 U.S. 456 (1988) (legitimacy); Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (sex/gender). 3
must be narrowly tailored to serve a compelling government interest. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). Laws that discriminate on the basis of sex are considered quasi-suspect and must be substantially related to an
protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (This Courts approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.). 3 A law that singles out such a class for disparate treatment
7 In determining whether heightened scrutiny is appropriate, the Court generally considers four factors: (1) whether the group has experienced a history of invidious discrimination, Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam); (2) whether the discrimination is based on stereotyped characteristics not truly indicative of the groups abilities, Cleburne, 473 U.S. at 441 (quoting Murgia, 427 U.S. at 313); (3) whether members of the group have obvious, immutable, or distinguishing characteristics that define them as a discrete group, Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citation omitted); and (4) whether the group lacks the capacity adequately to protect itself in the political process, Lyng v. Castillo, 477 U.S. 635, 638 (1986). The Court has not insisted that all four factors be present in every instance. For example, in some cases the Court has applied heightened scrutiny despite a groups substantial political power or the ability of individuals to opt out of the class. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (holding that all racial classifications are inherently suspect, even though many racial groups exercise substantial political power); Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (resident aliens are a suspect class notwithstanding their ability to opt out of the class). 4
important governmental objective. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 721-22 (1982). 4 See also Cleburne, 473 U.S. at 442 n.10 ([T]heres not much left of the immutability theory, is there?) (quoting John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 150 (1980)); id. at 472 n.24 (Marshall, J., concurring in judgment in part and dissenting in part) (The political powerlessness of a group may be relevant, but that factor is neither necessary, as the
8 In general, however, these are the four factors the Court considers in deciding whether heightened scrutiny is appropriate. Consideration of these four factors clearly establishes that laws that discriminate against gay men and lesbians must be subjected to heightened judicial scrutiny. Gay men and lesbians have long suffered a history of discrimination across all facets of life; sexual orientation has no bearing on an individuals ability to contribute to society; gay and lesbian individuals have historically faced significant obstacles to protecting themselves from discrimination through the democratic process; and sexual orientation is immutable or, at a minimum, is a defining characteristic that an individual ought not be compelled by law to change in order to avoid discrimination. A. Gay Men And Lesbians Have Faced A Long History Of Discrimination
There can be no doubt that homosexuals historically have been, and continue to be, the target of purposeful and often grievously harmful discrimination because of their sexual orientation. For centuries, the prevailing attitude toward gay persons has been one of strong disapproval, frequent ostracism, social and legal discrimination, and at times ferocious punishment. Richard A. Posner, Sex and Reason 291 (1992); see also Evan Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal
gender cases demonstrate, nor sufficient, as the example of minors illustrates. (citation omitted)); Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973) (applying intermediate scrutiny to women while finding that they do not constitute a small and powerless minority).
9 Protection 62 (1999) (cataloguing the numerous legal disadvantages suffered by gay men and lesbians in twentieth-century America). Gay men and lesbians have been denied employment, targeted for violence, publicly humiliated, and treated as perverts, sinners, and criminals. 5 The long history of discrimination against gay men and lesbians in this country has been recounted at length by numerous historians, courts, other amici, and by the United States itself. See, e.g., Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 314-15 (D. Conn. 2012); Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 985-86 (N.D. Cal.), petition for cert. filed (U.S. July 3, 2012) (No. 12-16); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 981-91 (N.D. Cal. 2010), affd, 671 F.3d 1052 (9th Cir. 2012); see also Amicus Br. of Organization of American Historians et al. It therefore suffices for present purposes to provide only a few of many possible examples of the historical discrimination against this group in almost every facet of American life. One need only look to the federal governments own practices for examples of the widespread, governmentsanctioned discrimination suffered by gay and lesbian persons. See Br. for the United States at 16, Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (Nos. 122335, 12-2435), 2012 WL 3548007 (The federal government has played a significant and regrettable
5 See also Rowland v. Mad River Local Sch. Dist., 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting) (stating that homosexuals have historically been the object of pernicious and sustained hostility).
10 role in the history of discrimination against gay and lesbian individuals.). During World War II, for example, the military systematically attempted to screen out lesbians and gay men from the armed forces andadding insult to injurydenied benefits to those who had served their nation. Nathaniel Frank, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America 9-11 (2009). During the 1950s, President Eisenhower issued an executive order requiring the discharge of homosexual employees from all federal employment and mandating that all defense contractors and other private corporations with federal contracts ferret out and fire all homosexual employees. 6 The federal governments employment discrimination against gay men and lesbians continued until the late 1990s. See Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (June 2, 1998). As recently as 1993, the federal government enacted the Dont Ask, Dont Tell policy, which forced service members to choose between concealing their sexual orientation and being discharged from the service. That policy remained in effect until late 2010. 10 U.S.C. 654(b) (2006), repealed by Pub. L. No. 111-321, 2(f)(1)(A), 124 Stat. 3515, 3516 (2010). In the realm of immigration, from 1917 to 1990 Congress prohibited gay men and women from
6 At the height of the McCarthy witch-hunt, the [Department of State] fired more homosexuals than communists. In the 1950s and 1960s literally thousands of men and women were discharged or forced to resign from civilian positions in the federal government because they were suspected of being gay or lesbian. George Chauncey, Why Marriage? The History Shaping Todays Debate Over Gay Equality 6 (2004).
11 entering the country. See Immigration Act of 1917, Pub. L. No. 64-301, 3, 39 Stat. 874, 875 (1917) (requiring exclusion of persons of constitutional psychopathic inferiority); Immigration and Nationality Act, amended October 3, 1965, Pub. L. No. 89-236, 15(b), 79 Stat. 911, 919 (amending the Immigration and Nationality Act to add sexual deviation as a medical ground for denying entry into the United States); 8 U.S.C. 1182(a)(4) (1982) (prohibiting individuals who acknowledged their homosexuality from entering this country); Immigration Act of 1990, Pub. L. No. 101-649, 601, 104 Stat. 4978, 5067-77 (1990) (finally eliminating sexual deviants from the list of excludable aliens). 7 Gay and lesbian individuals have also faced legal discrimination in the domestic sphere. For example, state laws historically prohibited (and some still prohibit) gay men and lesbians (and same-sex couples) from serving as foster or adoptive parents. See, e.g., Fla. Stat. 63.042(3) (2003) (No person eligible to adopt under this statute may adopt if that person is a homosexual.); Miss. Code Ann. 93-17-3(2) (2000) (prohibiting [a]doption by couples of the same gender); Utah Code Ann. 78-30-1(3)(b) (2006) (prohibiting a person who is cohabiting in a relationship that is not a legally valid and binding marriage under the laws of [Utah] from adopting through a public state agency); see also Opinion of the Justices, 525 A.2d 1095, 1098-1100 (N.H. 1987) (finding
7 See also Boutilier v. INS, 387 U.S. 118 (1967); Jorge L. Carro, From Constitutional Psychopathic Inferiority to AIDS: What is in the Future for Homosexual Aliens?, 7 Yale L. & Poly Rev. 201, 208-15 (1989) (surveying the historical treatment of homosexuals under United States immigration laws).
12 that legislatures proposal excluding homosexuals from foster care and adoption did not violate the equal protection clause of either the U.S. Constitution or the New Hampshire constitution); Howard v. Child Welfare Agency Review Bd., No. CV 1999-9881, 2004 WL 3154530, at *10-12 (Ark. Cir. Dec. 29, 2004) (upholding law that forbids the placement of children in the foster care of homosexuals), affd, 238 S.W.3d 1 (Ark. 2006). Perhaps the most telling evidence of the animus and discrimination against gay men and lesbians is the legacy of widespread criminalization of sexual conduct between consenting adults of the same sex. See Bowers v. Hardwick, 478 U.S. 186, 192 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 578 (2003); see also Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) ([T]he strong objection to homosexual conduct . . . has prevailed in Western culture for the past seven centuries.), cert. denied, 478 U.S. 1022 (1986). Such laws, this Court has recognized, unlawfully demean [the] existence of gay and lesbian individuals. Lawrence, 539 U.S. at 578. In a society in which homosexuality was excoriated as a heinous sin, the law branded it a serious crime, and the medical profession treated gay persons as diseased freaks of nature, individuals who suspected themselves of harboring homosexual desires were made to feel inferior and reviled. Gay men and lesbians attempted, often desperately, to hide their secret shame from family, friends, neighbors, and associates. The fear of discovery kept the secret lives of most gay men and lesbians invisible, even to one another. In short, gay men and lesbians have endured significant and longstanding discrimination in this country. Every
13 court to have considered that question has come to the same conclusion. 8 B. Sexual Orientation Is Irrelevant To An Individuals Ability To Contribute To Society
Another critical factor in the Courts heightened scrutiny analysis is whether the group in question is distinctively different from other groups in a way that frequently bears [a] relation to ability to perform or contribute to society. Cleburne, 473 U.S. at 440-41 (citation omitted); see also Frontiero v. Richardson, 411 U.S. 677, 686 (plurality op.) ([W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.). In Cleburne, the Court ruled that heightened scrutiny was inappropriate for laws discriminating against people who are mentally retarded, because such individuals have a reduced ability to cope with and function in the everyday world. 473 U.S. at 442. The Court similarly held that heightened scrutiny was not appropriate in reviewing mandatory retirement laws because ability generally declines with age.
That gay men and lesbians were not historically disenfranchised (BLAG Br. at 57) does not diminish this undeniable history of discrimination; the Court has never required a history of disenfranchisement to trigger heightened scrutiny. See, e.g., Lalli v. Lalli, 439 U.S. 259, 264-66 (1978) (recognizing illegitimacy as a quasi-suspect class entitled to intermediate scrutiny even though citizens born out of wedlock have never been disenfranchised). 8
14 Murgia, 427 U.S. at 315; see also Gregory v. Ashcroft, 501 U.S. 452, 472 (1991) (It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age.). As numerous courts, scholars, the American Psychiatric Associationand even the Proponents of Proposition 8have recognized, homosexual orientation implies no impairment in judgment, stability, reliability or general social or vocational capabilities. Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991) (quoting Resolution of the American Psychological Association (1975)), revd on other grounds, 976 F.2d 623 (10th Cir. 1992), cert. denied, 508 U.S. 952 (1993); Watkins v. United States Army, 875 F.2d 699, 725 (9th Cir. 1989) (Norris, J., concurring in the judgment) (Sexual orientation plainly has no relevance to a persons ability to perform or contribute to society. (citation omitted)), cert. denied, 498 U.S. 957 (1990); Laurence H. Tribe, American Constitutional Law 16-33 (2d ed. 1988) ([H]omosexuality bears no relation at all to [an] individuals ability to contribute fully to society.); Am. Psychiatric Assn, Position Statement On Homosexuality and Civil Rights, 131 Am. J. Psychiatry 436, 497 (1974); Perry J.A. Exh. 121. 9
9 See also Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417, 437 (S.D. Ohio 1994) ([S]exual orientation bears no relation whatsoever to an individuals ability to perform, or to participate in, or contribute to, society . . . .), revd on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001 (1996); Conaway v. Deane, 932 A.2d 571, 609 (Md. 2007) ([G]ay . . . persons . . . have been subject to unique disabilities not truly indicative of their abilities to contribute meaningfully to society.); Hernandez v. Robles, 855 N.E. 2d 1, 28 (N.Y. 2006) (Kaye, C.J., dissenting) (Obviously,
15 Indeed, gay men and lesbians can and do perform perfectly well as contributing members of society as lawyers, doctors, plumbers, soldiers, athletes, professors, judges, and parentswhen they are permitted to do so. Thus, this Courts observation that race, gender, alienage, and national origin are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy, is equally applicable to gay men and women. Cleburne, 473 U.S. at 440. Rather than dispute any of this, Proponents and BLAG change the subject. Twisting the Courts doctrine, they suggest that the critical inquiry is not whether sexual orientation frequently bears on a persons ability to participate in or contribute to society, Cleburne, 473 U.S. at 440-41 (citation omitted), but whether the group has distinguishing characteristics relevant to the distinctions actually drawn by the law at issue, BLAG Br. at 54 (emphasis added); see also Proponents Br. at 29 n.1 ([T]his distinction reflects biological realities closely related to societys traditional interest in marriage.). Proceeding from this mistaken premise, they argue that the relevant distinguishing characteristic of same-sex couples is that they enter into relationships that do not produce unplanned and unintended offspring. BLAG Br. at 54. This reformulation of the Courts doctrine stands the heightened scrutiny principle on its head. Under this Courts equal protection doctrine, the applicable
sexual orientation is irrelevant to ones ability to perform or contribute.).
16 level of scrutiny must be determined at the threshold, antecedent to and independent of whether any particular law that discriminates against the group might be deemed reasonable. See, e.g., Cleburne, 473 U.S. at 442-43, 447. This is fundamental to the very concept of heightened scrutiny under the Equal Protection Clause. As the court of appeals explained, whether the classification is related to the distinctions actually drawn in the law in question bear[s] upon whether the law withstands scrutiny (the second step of analysis), not on the question of what level of scrutiny is appropriate. United States Windsor Supp. App. 18a. Neither BLAG nor Proponents disputes that sexual orientationlike sex and other recognized suspect criteriabears no relation to [ones] ability to perform or contribute to society. Frontiero, 411 U.S. at 686 (plurality op.). 10 C. Gay Men And Lesbians Lack Sufficient Political Power To Protect Themselves Against Invidious Discrimination
That gay and lesbian individuals as a group possess limited ability to protect themselves in the political process also weighs in favor of heightened scrutiny of laws that discriminate against such individuals. 1. Before turning to the substantial body of evidence establishing the political vulnerability of gay men and lesbians, it is useful first to examine the nature and extent of this Courts consideration of political power in the heightened scrutiny analysis. As
10 It is also bizarre to suggest that a group otherwise entitled to heightened scrutiny protection ought to be denied that status because its members are less likely to engage in irresponsible procreation.
17 this Court has repeatedly made clear, the fact that a group has some political influence does not in any way forecloseor even weigh significantly againstthe need for heightened scrutiny. To the contrary, the Court has in some cases invoked, and continues to invoke, heightened scrutiny to test the constitutionality of laws that discriminate against groups that possess significant political influence. 11 African-Americans, for example, had made significant gains in political influence at the time of many of the Courts most important decisions applying strict scrutiny to racial classifications. In Loving v. Virginia, 388 U.S. 1, 6 n.6 (1967), for example, the Court observed that fourteen states had repealed their
11 While we recognize that the attainment of high political office by someone belonging to a particular group may have little if any correlation with the degree to which the group qua group enjoys political power, it is worth noting that racial minorities have served as President of the United States, Attorney General, Secretary of State, and held numerous other state and federal positions. The 113th Congress contains 44 African Americans, 38 Hispanic Americans, 12 Asian Americans, and 3 American Indians. See House Press Gallery, Demographics, http://housepressgallery.house.gov/member-data/demographics (last visited Feb. 27, 2013); United States Senate, Ethnic Diversity in the Senate, http://www.senate.gov/artandhistory/ history/common/briefing/minority_senators.htm (last visited Feb. 27, 2013). Women have served as Secretary of State, Attorney General, Speaker of the House, Secretary of Health and Human Services, and Secretary of Homeland Security, and have held numerous additional powerful state and federal positions. The 113th Congress contains 100 women, including 20 senators. See House Press Gallery, supra; United States Senate, Women in the Senate, http://www.senate.gov/artandhistory/history/common /briefing/women_senators.htm (last visited Feb. 27, 2013).
18 anti-miscegenation statutes in the fifteen years leading up to that decision. The Court nevertheless unanimously applied strict scrutiny to a law that discriminated against African-Americans. Women, too, had achieved substantial political successes by the time heightened scrutiny was first applied to sex-based classifications. The Frontiero plurality observed, for example, that the position of women in America ha[d] improved markedly in recent decades. 411 U.S. at 685. Congress had recently enacted several statutory prohibitions on sex-based discrimination (including Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963), and both houses of Congress had garnered the supermajorities necessary to pass the Equal Rights Amendment. Id. at 687. The plurality nonetheless correctly concluded that heightened scrutiny should apply to laws that discriminate on the basis of sex, in view of the long and unfortunate history of sex discrimination. Id. at 684. 12
12 Moreover, the Court has applied heightened scrutiny even to classes that have historically been among the most politically powerful in the nation. See Craig v. Boren, 429 U.S. 190, 208-10 (1976) (men); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (whites); Adarand, 515 U.S. at 227-31 (same). The Court in these cases was fully aware of the substantial political power held by the groups that these cases protect. See Craig, 429 U.S. at 219 (Rehnquist, J., dissenting) (There is no suggestion in the Courts opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.); Croson, 488 U.S. at 495 (Even were we to accept a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process, heightened
19 2. In any event, there is little doubt that the consideration of limited political power weighs heavily in favor of heightened scrutiny of laws that discriminate against gay men and lesbians. Indeed, gay men and lesbians have often failed in attempts to secure federal or state legislation to limit discrimination against them. Women and racial minorities, by contrast, have long enjoyed such protections. For example, to this day twenty-nine states have no laws prohibiting discrimination against gays and lesbians in employment, housing, or public accommodations, notwithstanding the history of discrimination discussed above. Perry J.A. 742-43 (Segura); see also Letter from United States Government Accountability Office to Hon. Tom Harkin et al., Sexual Orientation and Gender Identity Employment Discrimination: Overview of State Statutes and Complaint Data (Oct. 1, 2009), available at http://www.gao.gov/new.items/d10135r.pdf. Many states still forbid same-sex couples from adopting children, Pedersen, 881 F. Supp. 2d at 327-28, and still more prohibit same-sex couples from marrying. In the last two decades, more than two-thirds of ballot initiatives that proposed to enact (or prevent the repeal of) basic antidiscrimination protections for gay and lesbian individuals have failed. See Perry J.A. 741, 750. 13
scrutiny would still be appropriate in the circumstances of this case. (emphasis added)). 13 See Jane S. Schacter, Ely at the Altar: Political Process Theory Through the Lens of the Marriage Debate, 109 Mich. L. Rev. 1363, 1393 (2011) (It hardly follows that a group is politically powerful because it has achieved some success in securing legal
20 Moreover, in some instances hard-fought gains in the battle for equal rights for gay men and lesbians have been rolled back by aggressive ballot initiatives. Indeed, voters have used initiatives or referenda to repeal or prohibit equal marriage rights for same-sex couples on thirty-three occasions in recent years. In short, [t]here is no group in American society who has been targeted by ballot initiatives more than gays and lesbians. Perry J.A. 750 (Segura). The prevalence of violence directed at gay and lesbian individuals is also a strong indicator of relative powerlessness. Anti-gay hate crimes increased dramatically between 2003 and 2008, and hate crimes targeting lesbian and gay individuals represent an increasingly large share of total hate crimes in the United States. Perry J.A. 471 (Segura). The threat of private discrimination and violence further undermines the ability of many gay and lesbian people to participate fully in the political process by encouraging them to stay in the closet. Although recent increased acceptance in some (mostly urban) areas of the country has encouraged more gay and lesbian individuals to live openly, many remain personally and politically invisible.14 Gay and lesbian individuals also remain vastly under-represented in this Nations decisionmaking councils. Frontiero, 411 U.S. at 686 n.17. There are only seven openly gay individuals currently serving in
remedies against some of the formal and informal discrimination that has long burdened the group.). 14 See Schacter, supra, at 1385-86 (describing Professor Seguras testimony in Perry v. Schwarzenegger).
21 Congress. 15 The Connecticut Supreme Court observed in 2008 that, of the more than half million people who then held political office at the local, state, and national levels in this country, only about 300 were openly gay. See Kerrigan v. Commissioner of Pub. Health, 957 A.2d 407, 446 (Conn. 2008). 16 No openly gay person has ever served in the United States Cabinet, or on any federal court of appeals. This stands in marked contrast to the relative successes of members of other groups who have been accorded the protection of heightened scrutiny under the Equal Protection Clause. Indeed, in light of the very small number of openly gay public officials in the United States today, it is reasonable to conclude that lesbians and gay men have only one-fiftieth the representation they would have in the halls of government if it were not for the past and present discrimination against them. 17
15 David R. Sands, 113th Congress Mirrors Increasingly Diverse U.S., Wash. Times, Jan. 7, 2013, available at http://www.washingtontimes.com/news/2013/jan/7/113th-congressmirrors-increasingly-diverse-us/#ixzz2KHEmHzJj. 16 The ability to hide ones sexual orientation is a hindrance
rather than an aid in securing rights. As Justice Brennan (joined by Justice Marshall) put it: homosexuals constitute a significant and insular minority of this countrys population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting). 17 Although the exact number of gay men and lesbians in the
U.S. is unknown, a 2012 Gallup poll reported that 3.4% of Americans self-identify as lesbian, gay, bisexual, or transgender. Gary Gates & Frank Newport, Gallup Politics, Special Report: 3.4% of U.S. Adults Identify as LGBT (Oct. 18,
22 BLAG notes (at 51-53) that President Obama supports equal rights for gay and lesbian individuals. But the support of the presidentwho cannot himself change discriminatory federal or state lawshas never been considered by this Court as disqualifying from heightened scrutiny a group that has suffered a long history of discrimination. Although Presidents Nixon and Ford both supported the Equal Rights Amendment, the Court did not decline to extend heightened scrutiny to laws that discriminated against women in the 1970s. Similarly, although President Truman desegregated the military 18 and President Eisenhower supported the Civil Rights Act of 1957, 19 the Court did not hesitate to extend heightened scrutiny to laws that discriminated against AfricanAmericans in the 1940s and 1950s. BLAGs attempt to characterize the growing support for equal rights for gay and lesbian individuals in some jurisdictions as sufficient to justify rejecting heightened scrutiny here is wholly misguided. While there have been some recent successes in securing antidiscrimination legislation (and even marriage equality) in some parts of the nation, those very recent and patchwork results do not alter the conclusion that gay men and lesbians lack sufficient political clout to effectively protect themselves in the political process more generally. A modicum of political success in
2012), http://www.gallup.com/poll/158066/special-report-adultsidentify-lgbt.aspx. But only .06% of public officials are openly gay. Kerrigan, 957 A.2d at 446. 18 See Exec. Order No. 9981, 3 C.F.R. 722 (1943-1948). 19 See Statement by the President on the Objectives of the Civil Rights Bill, 1957 Pub. Papers 545 (July 16, 1957) (urging passage of the proposed legislation).
23 select jurisdictions is insufficient to establish that a historically oppressed and subordinated group can adequately protect itself in the political process more generally. See Loving, 388 U.S. at 6; see generally Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 742 (1985) (arguing that the Courts focus should be on systematic disadvantages that undermine our systems legitimacy); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 145-70 (1980) (discussing how deep-seated prejudice can distort the political process). The plain and simple fact is that the barriers to achieving equal respect, equal dignity, and equal rights through the political process remain daunting. This is especially evident at the state level, where a substantial majority of jurisdictions still fervently opposes equal rights for gay men and lesbians and where private discrimination is still often both widespread and fierce. Just as the repeal of antimiscegenation laws in some states was insufficient to prevent the Court in Loving from employing heightened scrutiny to invalidate such laws in 1967, and just as laws prohibiting discrimination against women were insufficient to prevent the Court from employing heightened scrutiny to invalidate laws discriminating against women since the 1970s, so too are scattered victories in a handful of states an insufficient basis on which to reject heightened scrutiny for laws that discriminate against gay and lesbian individuals today. D. Sexual Orientation Is An Immutable Or Defining Characteristic
In deciding whether heightened scrutiny is appropriate under the Equal Protection Clause, the Court has looked with particular suspicion upon laws
24 that discriminate on the basis of immutable or distinguishing characteristics that define [persons] as a discrete group. Gilliard, 483 U.S. at 602 (quoting Lyng, 477 U.S. at 638). This consideration derives from the basic concept of our system that legal burdens should bear some relationship to individual responsibility. Frontiero, 411 U.S. at 626; cf. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (Alito, J.) (characteristic is immutable when the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences (citation omitted)). Accordingly, a law is more likely to receive heightened scrutiny if it discriminates against an individual based on a characteristic that she either cannot realistically change, or ought not be compelled to change because it is fundamental to her identity. See, e.g., Plyler, 457 U.S. at 220 (noting that illegal alien children have little control over that status); Nyquist, 432 U.S. at 9 n.11 (treating resident aliens as a suspect class despite their ability to opt out of that class); Steffan v. Perry, 41 F.3d 677, 689 n.9 (D.C. Cir. 1994) (noting that a [c]lassification[] based on religion, of course, would trigger strict scrutiny); see also City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (rational basis review applies [u]nless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage). 20
20 This Court has on several occasions applied heightened scrutiny to laws that discriminate against a group whose defining characteristics are capable of alteration. These characteristics, moreover, need not manifest in the form of an obvious badge; they often may be disclosed or suppressed as a matter of
25 Sexual orientation clearly falls within this category of defining personal characteristics. As this Court has acknowledged, sexual orientation is so fundamental to a persons identity that one ought not be forced to choose between ones sexual orientation and ones rights as an individualeven if, as Proponents suppose, such a choice could be made. See Lawrence, 539 U.S. at 576-77 (recognizing that individual decisions by consenting adults concerning the intimacies of their physical relationships are an integral part of human freedom). 21
preference. See Mathews v. Lucas, 427 U.S. 495, 505-06 (1976); see also Watkins v. United States Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in judgment) (It is clear that by immutability the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. . . . At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.). 21 See also, e.g., In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008) (Because a persons sexual orientation is so integral an aspect of ones identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.); Kerrigan, 957 A.2d at 438 (In view of the central role that sexual orientation plays in a persons fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.); Golinski, 824 F. Supp. 2d at
26 In any event, as the district court found in Perry on a full trial record, there is now broad medical and scientific consensus that sexual orientation is an immutable characteristic, in the very sense that Proponents would require. See Perry Pet. App. 231a (No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.); see also Gregory M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults 7 Sex Res. Soc. Policy 176 (2010). 22 Proponents and BLAGs contrary arguments rest principally on a supposed distinction between statusa characteristic that defines a classand the propensity to engage in a certain kind of conduct. The Court has emphatically and correctly rejected attempts to draw a distinction between status and
987 ([A] persons sexual orientation is so fundamental to ones identity that a person should not be required to abandon it.). 22 Proponents argued below, and BLAG argues in this Court (at 55), that homosexuality is not immutable because some individuals claim to have experienced a change in their sexual orientation over the course of their lives. To the extent that such individuals report experiencing a passive change that was not in their control, that obviously is not relevant to the immutability inquiry, which is focused on whether an individual is responsibl[e] for the characteristic at issue. Frontiero, 411 U.S. at 626. But even if some small number of individuals report the ability to voluntarily change, heightened scrutiny is still appropriate here, for at least two reasons. First, such claims are both rare and of questionable validity, as there is now broad medical and scientific consensus that ones sexual orientation (as distinct from ones sexual conduct) is largely unchangeable. Second, other characteristics that trigger heightened scrutiny (such as gender) can also, with great difficulty, be altered.
27 conduct in defining the rights of homosexual persons. Christian Legal Socy Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2990 (2010) (CLS) (Our decisions have declined to distinguish between status and conduct in this context.); Lawrence, 539 U.S. at 575 (When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination. (emphasis added)); see also id. at 567 ([I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.); id. at 583 (OConnor, J., concurring in judgment) (While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class. (emphasis added)). The lower court decisions on which Proponents and BLAG rely (most of which were decided before Lawrence overruled Bowers) are also grounded on the now-discredited theory that homosexual behavior is changeable and therefore homosexuality is not immutable. Those decisions do not survive Lawrence and CLS. 23
23 E.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (sexual orientation is not an immutable characteristic because [h]omosexuality . . . is behavioral.). Somewhat ironically, other lower court decisions applying rational basis review did recognize the status/conduct problem; they relied on Bowers and reasoned that it would be anomalous . . . to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny. Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); see infra at 28-29 & nn. 26-28.
28 E. Neither Baker v. Nelson Nor Romer v. Evans Nor Lawrence Forecloses Application Of Heightened Scrutiny
This case presents an issue of first impression. Though members of the Court have opined on the issue, 24 neither Baker v. Nelson, 409 U.S. 810 (1972) nor the Courts more recent decisions squarely addressedmuch less resolvedthe appropriate level of scrutiny to apply to laws that discriminate against gay and lesbian persons. In Baker, a summary dismissal of an appeal from a state court decision holding that gay men do not have a federal constitutional right to marry, the appellants did not even make this argument, so it was not before the Court. See Appellants Jurisdictional Statement 3, Baker v. Nelson, No. 71-1027 (S. Ct. filed Feb. 11, 1972) (Questions Presented); see also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) (summary disposition does not decide questions that merely lurk[ed] in the record (citation omitted)).
24 See, e.g., Lawrence, 539 U.S. at 580 (OConnor, J., concurring in judgment) (finding a Texas law banning same-sex sodomy to exhibit[] . . . a desire to harm homosexuals as a politically unpopular group, thus warranting a more searching form of rational basis review . . . under the Equal Protection Clause); Rowland, 470 U.S. at 1014 (Brennan, J., dissenting from denial of certiorari) (describing homosexuals as a significant, politically powerless, historically scorned, and insular minority, and observing that [s]tate action taken against members of such groups based simply on their status as members of the group traditionally has been subject to strict, or at least heightened, scrutiny by this Court).
29 In any event, both the Courts interpretation of the Equal Protection Clause and legal, medical, cultural, and social attitudes towards sexual orientation have changed so profoundly since 1972 that the summary dismissal in Baker has little if any precedential effect today. See Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (a summary dismissal is not binding if it has been undermined by subsequent doctrinal developments). Among other significant developments since Baker, the State may no longer demean [homosexuals] existence or control their destiny by making their private sexual conduct a crime. Lawrence, 539 U.S. at 578 (overruling Bowers v. Hardwick). 25 The Courts more recent decisions in Romer v. Evans and Lawrence clearly do not foreclose the
25 In the forty years since Baker was decided, this Court has transformed both its equal protection jurisprudence generally, and its treatment of sexual orientation in particular. It is now well settled that discrimination on the basis of sex triggers heightened scrutiny. Compare Baker, Jurisdictional Statement 16 (It is true that the inherently suspect test which this Court applied to classifications based upon race has not yet been extended to classifications based upon sex. (internal citations omitted)), with Frontiero, 411 U.S. at 688 (plurality) (concluding that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect and therefore subject to heightened scrutiny); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (party who seeks to defend a statute that classifies individuals on the basis of sex must carry the burden of showing an exceedingly persuasive justification for the classification (citation omitted)). The Court now acknowledges that sexual orientation is a self-identifying trait, and has held that the classification of [homosexuals] undertaken for its own sake must be struck down as lacking any legitimate basis. Romer v. Evans, 517 U.S. 620, 635 (1996).
30 application of heightened scrutiny. Although the plaintiff-respondents in Romer argued for heightened scrutiny in the trial court, they did not make that argument in this Court. See 517 U.S. 620, 640 n.1 (1996) (Scalia, J., dissenting). Moreover, the Courts analysis in Romer hinged ultimately not on the identity of the affected class, but on the inadequate justification for the challenged law: Moral disapproval of [a] group. Lawrence, 539 U.S. at 582 (citing Romer, 517 U.S. at 634-35). Because the law challenged in Romer failed even the most deferential measure of equal protection scrutiny, the Court found it unnecessary to consider the broader question. Similarly, although Lawrence expanded the substantive protections afforded to homosexuals, it too did not address the standard of review applicable to laws that discriminate against gay men and lesbians under the Equal Protection Clause. Instead, the Court in Lawrence resolved the issue before it by holding that the challenged law violated the Due Process Clause of the Fourteenth Amendment. 539 U.S. at 564, 578-79. The Court therefore found it unnecessary to address the equal protection issue. See id. at 574-75 (noting that the equal protection argument is tenable but conclud[ing] the instant case requires [the Court] to address whether Bowers itself has continuing validity). BLAG emphasizes (at 13 & n.4, 28-29) the lower court decisions that have applied rational basis review to laws that discriminate on the basis of sexual orientation. Those decisions are unpersuasive. With the exception of the Second Circuit in Windsor, no federal court of appeals has analyzed the issue according to the Courts four-factor test since Bowers
31 was overruled. Most of the decisions rely explicitly on Bowersor on other circuit decisions that relied on Bowers. 26 And the post-Lawrence decisions (save Windsor, which held that heightened scrutiny was appropriate) expressly refrained from considering the factors, 27 or hewed to pre-Lawrence binding circuit precedent, awaiting further guidance from this Court. 28
26 See, e.g., Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (After Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm.), cert. denied, 494 U.S. 1003 (1990)); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class . . . .), cert. denied, 494 U.S. 2004 (1990); Equality Found. of Greater Cincinnati, 54 F.3d at 266-67 & n.2 (Since Bowers, every circuit court which has addressed the issue has decreed that homosexuals are entitled to no special constitutional protection, as either a suspect or a quasisuspect class, because the conduct which places them in that class is not constitutionally protected.); Padula, 822 F.2d at 103 (It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause.). 27 Cook v. Gates, 528 F.3d 42, 51 (1st Cir. 2008); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (Moreover, all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class. (citing, inter alia, High Tech Gays, 895 F.2d at 571 ([B]ecause homosexual conduct can . . . be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class.)). 28 See, e.g., Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (citing Equality Found. of Greater Cincinnati, 128 F.3d at 292-94); Perry v. Brown, 671 F.3d 1052, 1080 n.13 (9th Cir. 2012) (citing High Tech Gays, 895 F.2d at 574); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008)
32 ***** [T]he judiciarys role under the Equal Protection Clause is to protect discrete and insular minorities from majoritarian prejudice or indifference. Croson, 488 U.S. at 495 (citation omitted). It is not seriously disputed that gay men and lesbians have experienced a history of purposeful discrimination on the basis of a characteristic that bears no relation to their ability to contribute to society. Gay men and lesbians also lack sufficient political power to protect themselves against continued discrimination. And sexual orientation is both fundamental to ones identity, Lawrence, 539 U.S. 576-77, and not changeable through conscious decision, therapeutic intervention or any other method. Perry Pet. App. 231a. Laws that discriminate against gay and lesbian persons should therefore be tested by heightened judicial scrutiny.
(citing Walmer v. Dept of Defense, 52 F.3d 851, 854 (10th Cir. 1995)).
33 CONCLUSION For the foregoing reasons, this Court should hold that laws that classify individuals for disparate treatment on the basis of their sexual orientation trigger heightened scrutiny. Respectfully submitted, GEOFFREY R. STONE THE UNIVERSITY OF CHICAGO LAW SCHOOL 1111 E. 60th Street Chicago, IL 60637 (773) 702-4907 gstone@uchicago.edu LORI ALVINO MCGILL Counsel of Record JESSICA E. PHILLIPS STEPHEN P. BARRY DOUGLAS M. BUSHEY LATHAM & WATKINS LLP 555 11th Street, NW Suite 1000 Washington, DC 20004 (202) 637-2319 lori.alvino.mcgill@lw.com
February 28, 2013
Exhibit 13
Case: Case 12-17668 2:13-cv-00217-RJS 10/25/2013Document ID: 8836875 85-14 Filed DktEntry: 11/22/13 24 Page Page: 2 of 143 of 42
Nos. 12-17668, 12-16995, 12-16998
United States Court of Appeals for the Ninth Circuit

BEVERLY SEVCIK, ET AL., Plaintiffs-Appellants, v. BRIAN SANDOVAL, ET AL., Defendants-Appellees, and COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
NATASHA N. JACKSON, ET AL., Plaintiffs-Appellants, v. NEIL S. ABERCROMBIE, GOVERNOR, STATE OF HAWAII, Defendant-Appellant, LORETTA J. FUDDY, DIRECTOR, DEPARTMENT OF HEALTH, STATE OF HAWAII, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor-Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII
BRIEF OF MASSACHUSETTS, CALIFORNIA, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, ILLINOIS, IOWA, MAINE, MARYLAND, NEW HAMPSHIRE, NEW MEXICO, NEW YORK, OREGON, VERMONT, AND WASHINGTON AS AMICI CURIAE IN SUPPORT OF APPELLANTS
MARTHA COAKLEY Attorney General GENEVIEVE C. NADEAU * JONATHAN B. MILLER Assistant Attorneys General COMMONWEALTH OF MASSACHUSETTS Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 genevieve.nadeau@state.ma.us *Counsel of Record
(Additional counsel listed on next page)
ADDITIONAL COUNSEL KAMALA D. HARRIS Attorney General of California 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, California 94244 GEORGE JEPSEN Attorney General of Connecticut 5 Elm Street Hartford, Connecticut 06106 JOSEPH R. BIDEN, III Attorney General of Delaware Department of Justice 820 N. French Street Wilmington, Delaware 19801 IRVIN B. NATHAN Attorney General for the District of Columbia One Judiciary Square 441 4th Street, N.W. Washington, District of Columbia 20001 LISA MADIGAN Attorney General of Illinois 100 W. Randolph St., 12th Floor Chicago, IL 60601 TOM MILLER Attorney General of Iowa 1305 E. Walnut Street Des Moines, Iowa 50319 JANET T. MILLS Attorney General of Maine Six State House Station Augusta, Maine 04333 DOUGLAS F. GANSLER Attorney General of Maryland 200 Saint Paul Place Baltimore, Maryland 21202 JOSEPH A. FOSTER Attorney General of New Hampshire 33 Capitol Street Concord, New Hampshire 03301 GARY K. KING Attorney General of New Mexico P.O. Drawer 1508 Santa Fe, New Mexico 87504 ERIC T. SCHNEIDERMAN Attorney General of New York 120 Broadway, 25th Floor New York, New York 10271 ELLEN F. ROSENBLUM Attorney General of Oregon 1162 Court Street N.E. Salem, Oregon 97301 WILLIAM H. SORRELL Attorney General of Vermont 109 State Street Montpelier, Vermont 05609 ROBERT W. FERGUSON Attorney General of Washington 1125 Washington Street SE P.O. Box 40100 Olympia, Washington 9850
TABLE OF CONTENTS TABLE OF AUTHORITIES...iii INTEREST OF AMICI CURIAE.. 1 SUMMARY OF ARGUMENT.....2 I. CIVIL MARRIAGE ADVANCES MANY IMPORTANT STATE INTERESTS, ALL OF WHICH ARE ADVANCED BY INCLUDING SAME-SEX COUPLES IN THE INSTITUTION ..........4 A. State Interests In Marriage Are Furthered By Ending The Exclusion Of Same-Sex Couples .... 5 The History And Evolving Tradition Of Civil Marriage Are Not Solely About Promoting Procreation And Do Not Justify Continued Discrimination 8
B.
II.
NEVADA AND HAWAII MARRIAGE LAWS ARE NOT RATIONALLY RELATED TO INTERESTS IN PROCREATION AND CHILDBEARING BY DIFFERENT-SEX COUPLES .12 A. Excluding Same-Sex Couples From Marriage Does Not Promote The Well-Being Of Children ...13 Same-Sex Parents Are As Capable As Different Parents Of Raising Healthy, Well-Adjusted Children ....15 Promoting Responsible Procreation Does Not Justify Restricting Marriage To Different-Sex Couples ........18
B.
C.
III.
SPECULATION ABOUT THE EROSION OF THE INSTITUTION OF MARRIAGE IS DEMONSTRABLY FALSE ...22 A. The Institution Of Marriage Remains Strong In States That Allow Same-Sex Couples To Marry .............22
i
B.
Allowing Same-Sex Couples To Marry Does Not Threaten The States Ability To Regulate Marriage .... 28
CONCLUSION ....................32
ii
TABLE OF AUTHORITIES Cases Andersen v. King County, 138 P.3d 963 (Wash. 2006) ... 15 Baker v. State, 744 A.2d 864 (Vt. 1999) ........... 5, 15 Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) . 20 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .. 8, 20, 21 Fla. Dept of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010) ...... 16 Frontiero v. Richardson, 411 U.S. 677 (1973) .. 29 Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ....... passim Griswold v. Connecticut, 381 U.S. 479 (1965) .. 10, 20-21 Heller v. Doe, 509 U.S. 312 (1993) ... 20 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) 5, 9, 18-19 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) .......28 Johnson v. Robinson, 415 U.S. 361 (1974) . 7 Lapides v. Lapides, 171 N.E. 911 (N.Y. 1930) ..... 19 Lawrence v. Texas, 539 U.S. 558 (2003) ..... 10, 20 Loving v. Virginia, 388 U.S. 1 (1967) ...3, 15, 28, 30-31 Martin v. Otis, 124 N.E. 294 (Mass. 1919) ... 19 Maynard v. Hill, 125 U.S. 190 (1888) . 4 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) 22 iii
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ...10, 20 Nevada Dept of Human Res. v. Hibbs, 538 U.S. 721 (2003) 17 Plyler v. Doe, 457 U.S. 202 (1982) ... 8, 22 Romer v. Evans, 517 U.S. 620 (1996) ..11, 20 Ryder v. Ryder, 28 A. 1029 (Vt. 1894) .. 19 Stanley v. Illinois, 405 U.S. 645 (1972) . 17 Troxel v. Granville, 530 U.S. 57 (2000) 17 Turner v. Safley, 482 U.S. 78 (1987) ... 18-19 United States v. Virginia, 518 U.S. 515 (1996) ... 13, 17 United States v. Windsor, 133 S. Ct. 2675 (2013) . 8, 13 United States v. Yazell, 382 U.S. 341 (1966) 11 U.S. Dept of Agriculture v. Moreno, 413 U.S. 528 (1973) .. 21 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ... 16 Zablocki v. Redhail, 434 U.S. 374 (1978) ... ..10, 19, 20 Statutes Il. St. Ch. 765 305/4(c)(3) ... 19 N.Y. Est. Powers & Trusts Law 9-1.3(e) 19
iv
Other Authorities Brief for Appellee, Loving v. Virginia, 388 U.S. 1 (1967) (No. 395), 1967 WL 113931.. 15-16 Centers for Disease Control and Prevention, National Vital Statistics System, Divorce Rates by State: 1990, 1995, and 1999-2011, http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf ...... 26, 27 Centers for Disease Control and Prevention, National Vital Statistics System, National Marriage and Divorce Rate Trends 2000-2011, http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm... 23-24, 27 Centers for Disease Control and Prevention, National Vital Statistics System, Marriage Rates by State: 1990, 1995, and 1999-2011, http://www.cdc.gov/nchs/data/dvs/marriage_rates_90_95_99-11.pdf .... 23, 24 Alexis Dinno & Chelsea Whitney, Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage, PloS ONE, Vol. 8, No. 6 (June 2013), http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal. pone.0065730 ........ 25 Brady E. Hamilton, Joyce A. Martin, & Stephanie J. Ventura, National Vital Statistics Reports, Birth: Preliminary Data for 2009, Vol. 59, No. 3, Dec. 21, 2010, http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_03.pdf ............... 28 Brady E. Hamilton, Joyce A. Martin, & Stephanie J. Ventura, National Vital Statistics Reports, Birth: Preliminary Data for 2011, Vol. 61, No. 5, Oct. 3, 2012 http://www.cdc.gov/nchs/data/nvsr/nvsr61/ nvsr61_05.pdf... ... 27, 28 Mark L. Hatzenbuehler et al., Effect of Same-Sex Marriage Laws on Health Care Use and Expenditures in Sexual Minority Men: A Quasi-Natural Experiment, Am. J. Pub. Health, Feb. 2012 .... 6 Mark L. Hatzenbuehler, et al., State-Level Policies and Psychiatric Morbidity in Lesbian, Gay, and Bisexual Populations, Am. J. Pub. Health, Dec. 2009... .. 6
v
Iowa Department of Public Health, Bureau of Vital Statistics, 2010 and 2011 Vital Statistics of Iowa http://www.idph.state.ia.us/apl /health_ statistics.asp#vital................................................................................................25 Chris Kirk & Hanna Rosin, Does Gay Marriage Destroy Marriage? A Look at the Data, Slate.com, May 23, 2012, http://www.slate.com/articles/ double_x/doublex/2012/05/does_gay_marriage_affect_marriage_or_ divorce_rates_.html ............................................. 24, 26, 27, 21 Rod Boshart Lee, Marriages Up, Divorces Down in Iowa, Sioux City Journal, July 23, 2010 26 Lisa Leff, Defense Lawyers Rest Case at Gay Marriage Trial, Associated Press, Jan. 27, 2010, http://www.boston.com/news/nation/articles/ 2010/01/27/witness_says_gay_marriage_would_help_children/....... 14 Christopher Ramos, et al., The Effects of Marriage Equality in Massachusetts: A Survey of the Experiences and Impact of Marriage on Same-Sex Couples, The Williams Institute, May 2009, http://williamsinstitute. law.ucla.edu/experts/lee-badgett/effects-marriage-equality-masurvey/ .... 14 Sabrina Tavernise, Parenting by Gays More Common in the South, Census Shows, N.Y. Times, Jan. 19, 2011 . ..14-15 Michael Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 Va. J. Soc. Poly & L. 291 (2001) ........ 7 The Williams Institute, United States Census Snapshot: 2010, http://williamsinstitute.law.ucla.edu/wp-content/uploads/Census 2010Snapshot-US-v2.pdf.. 14
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Case: Case 12-17668 2:13-cv-00217-RJS 10/25/2013 Document ID: 8836875 85-14 Filed DktEntry: 11/22/13 24Page Page: 10 of 9 43 of 42
INTEREST OF AMICI CURIAE Amici States Massachusetts, California, Connecticut, Delaware, the District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington 1 file this brief in support of Appellants Beverly Sevcik, et al. (No. 12-17668) and Natasha H. Jackson, et al. (Nos. 1216995, 12-16998) as a matter of right pursuant to Fed. R. App. P. 29(a). 2 The Amici States share a compelling interest in ensuring that all citizens have equal opportunity to participate in civic life. To that end, each of the Amici States has taken steps to eliminate discrimination in employment, housing, education, and the provision of government services and benefits. In addition, the Amici States all license marriage to advance many important governmental interests, and are committed to ensuring that the institution of marriage is strengthened by removing unnecessary and harmful barriers.
The District of Columbia, which sets its own marriage rules, is referred to as a state for ease of discussion. The Amici States recognize that the Court has extended the briefing schedule in Jackson v. Abercrombie, Nos. 12-16995 and 12-16998, and that the case may be stayed and/or dismissed, pending the outcome of Hawaiis special legislative session. 1
2
Based on our shared goals of promoting marriage, protecting families, and eliminating discrimination, we join in asking the Court to reverse the judgments of the district courts below. SUMMARY OF ARGUMENT Civil marriage in the United States is an important and enduring institution. Throughout our Nations history, marriage has maintained its essential role in society and has been strengthened, not weakened, by removing barriers to access and by creating greater equality between spouses. Over the past decade, this evolution has continued as same-sex couples have been permitted to marry. Against that history of greater inclusion and equality, Nevada and Hawaii marriage laws single out same-sex couples and consign them to second-class status. The exclusion of same-sex couples from marriage is unconstitutional. Denying gay men and lesbians the fundamental right to wed the partner of their choosing offends basic principles of due process and equal protection, and fails to advance any legitimate governmental interest. Since the Founding, states have sanctioned marriages to support families, strengthen communities, and facilitate governance. Because same-sex couples form families, raise children, and avail themselves of the benefits and abide by the obligations of marriage in the same manner as different-sex couples, the states interests in marriage are furthered by allowing same-sex couples to marry. 2
Attempts to justify exclusionary laws by recasting the states interests in marriage as singularly focused on the procreative potential of different-sex couples are misguided. Neither the laws of the several states, nor applicable jurisprudence, supports such a narrow understanding of marriage. Moreover, there is no rational relationship between encouraging responsible procreation by different-sex couples and excluding same-sex couples from marriage. Exclusionary marriage laws similarly cannot be justified by pure speculation as to the injury same-sex marriage will inflict on the institution. The Supreme Court rejected similar conjecture in Loving v. Virginia, 388 U.S. 1 (1967), and the experience of states permitting same-sex marriage belies such speculation. None have experienced the adverse consequences that the laws proponents seek to avoid. Instead, the data indicate that eliminating marriage restrictions has no negative effect on rates of marriage, divorce, or births to unmarried mothers. If anything, these measures of the strength of the institution have improved. Nor have equal marriage rights weakened the ability of states to impose reasonable regulations on marriage generally. Nevada and Hawaii marriage laws deny gay men and lesbians the fundamental right to marry and codify the second-class statusfor its own sake
3
of same-sex couples and their families. Under any standard of constitutional analysis, they cannot survive review. 3 ARGUMENT I. CIVIL MARRIAGE ADVANCES MANY IMPORTANT STATE INTERESTS, ALL OF WHICH ARE ADVANCED BY INCLUDING SAME-SEX COUPLES IN THE INSTITUTION.
Marriage is a great public institution, giving character to our whole civil polity. Maynard v. Hill, 125 U.S. 190, 213 (1888). Yet, while it has always been an anchor for an ordered society, civil marriage has never been a static institution. Societal changes have resulted in corresponding changes to marriage eligibility rules and to our collective understanding of the relative roles of persons within a marriage. Nevertheless, generations of Americans have consistently valued
marriage as a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 954 (Mass. 2003). States, too, have long valued marriage for its many benefits to individuals, households, and the community at large, and therefore have transformed the
For the reasons set forth in the brief of Appellants Beverly Sevcik, et al. (pp. 49-62), the Amici States submit that laws that discriminate on the basis of sexual orientation should be subject to heightened scrutiny. 4
personal commitment inherent in marriage into publicly recognized rights and obligations. A. State Interests In Marriage Are Furthered By Ending The Exclusion Of Same-Sex Couples.
States recognize and regulate civil marriage to serve several interests, including to facilitate governance, create economic benefit, create stable households, create legal bonds between parents and children, assign providers to care for dependents, and facilitate property ownership and inheritance. ER 267 (Cott).4 Underlying all of these interests is the recognition that marriage provides stability for individuals, families, and the broader community. Baker v. State, 744 A.2d 864, 889 (Vt. 1999). For example, the security of marital households creates a critical private safety net, ensuring that members of the family are not alone in a time of crisis, and limiting the publics liability to care for the vulnerable. In re Marriage Cases, 183 P.3d 384, 423-424 (Cal. 2008). Marriage also provides couples with greater
freedom to make decisions about education and employment knowing that, if one spouse provides the primary economic support, the other will be protected, even in the event of divorce or death. ER 363-364 (Badgett). As a result, married couples
4
References to Plaintiffs-Appellants Beverly Sevcik, et. al.s Excerpts of Record are cited as ER [pg.] ([declarant]). 5
can specialize their labor and invest in each others education and career, which has long-term benefits for both the couple and the state. Id. Marriage also advances the well-being of spouses. Research has established that married people enjoy greater physical and psychological health and greater economic prosperity than unmarried persons. ER 314-315 (Peplau). In addition, recent studies demonstrate that gay men and lesbians, in particular, benefit when marriage is made available to them. 5 Beyond the married couple, marriage improves the quality of childrens lives in many ways: [M]arital children reap a measure of family stability and economic security based on their parents legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumption of ones parentage.
Gay men and lesbians living in states with protective policies are significantly less likely to suffer from psychiatric disorders than their counterparts living in states without such policies. Mark L. Hatzenbuehler, et al., State-Level Policies and Psychiatric Morbidity in Lesbian, Gay, and Bisexual Populations, Am. J. Pub. Health, Dec. 2009. Similarly, gay men experience a statistically significant decrease in medical care visits, mental health visits, and mental health care costs following the legalization of same-sex marriage. Mark L. Hatzenbuehler et al., Effect of Same-Sex Marriage Laws on Health Care Use and Expenditures in Sexual Minority Men: A Quasi-Natural Experiment, Am. J. Pub. Health, Feb. 2012. 6
Goodridge, 798 N.E.2d at 956-957. Marriage improves childrens well-being by honoring their parents relationships and by strengthening their families through, for example, enhanced access to medical insurance, tax benefits, estate and homestead protections, and the application of predictable custody, support, and visitation rules. Id. at 956. Children whose parents are married simply have a better chance of living healthy, financially secure, and stable lives. In sum, the states favorand therefore encouragemarriage over transient relationships because marriage promotes stable family bonds, fosters economic interdependence and security for members of the marital household, and enhances the physical and emotional well-being of both the partners to the marriage and their children. Michael Wald, Same-Sex Couple Marriage: A Family Policy
Perspective, 9 Va. J. Soc. Poly & L. 291, 300-303 (2001); see also Goodridge, 798 N.E.2d at 954. All of these interests are furthered by including same-sex couples in the institution of marriage. Thus, this is not a case where the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not. Johnson v. Robinson, 415 U.S. 361, 383 (1974). Instead, this is a case where the exclusion of a similarly-situated group undermines the important governmental interests states promote through marriage. Given their recognition of same-sex domestic partnerships and civil unions, the only interest Nevadas and Hawaiis laws actually advance by withholding the 7
title of marriage is the interest in signifying the states lesser respect for samesex couples. However, no state has a legitimate interest in codifying second-class status for its own sake. See United States v. Windsor, 133 S. Ct. 2675, 2694 (2013) (invalidating Section 3 of the Defense of Marriage Act because it created two classes of state-sanctioned, same-sex relationships and had the principal purpose [of imposing] inequality). By deliberately withholding the social benefits and cultural significance associated with state-sanctioned marriage, Nevada and Hawaii marriage laws work a special harm on same-sex couples and their families without advancing any legitimate governmental interest. Given that the touchstone of the Fourteenth Amendment is that the government must treat all similarly-situated people alike, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)), these laws fail the most basic of constitutional inquiries. B. The History And Evolving Tradition Of Civil Marriage Are Not Solely About Promoting Procreation And Do Not Justify Continued Discrimination.
The argument that the governments sole interest in recognizing and regulating marriage is the natural capacity of different-sex couples to produce children not only ignores the many state interests advanced by marriage, but also distorts history. Appellees seek to elevate procreation to the sole, or even primary, purpose of marriage because it singles out the one unbridgeable difference 8
between same-sex and opposite-sex couples, and transforms that difference into the essence of a legal marriage. Goodridge, 798 N.E.2d at 962. Their argument stands at odds with the full history of marriage in our country, and seeks to justify discrimination based on historical tradition. Encouraging procreation has never been the governments principal interest in recognizing and regulating marriage, and tradition alone cannot sustain ongoing discrimination. 6 ER 267-269 (Cott); see also In re Marriage Cases, 183 P.3d at 432. In the United States, civil marriage has always been authorized and regulated by local governments in the exercise of their police powers. ER 266 (Cott). Throughout our history, therefore, marriage has been understood as an institution that is at the same time public and private, legal and intimate. On the public side, marriage has served both political and economic ends. In early
America, the household formed by marriage was understood as a governable, political subgroup (organized under male heads), and therefore a form of efficient governance. ER 267-268 (Cott). As a political unit, the household included not only the married couple and their children, but also extended family. Later,
households took on particular significance as economic sub-units of state
As Professor Nancy Cott testified, marriage rules in the United States have been directed more consistently at supporting children than producing them. ER 269. 9
governments, functioning as support systems for all household members, not only the children born of the marriage. Thus, the states historically have encouraged couples to choose committed relationships, regardless of whether they result in children, because these private relationships assist in maintaining public order. Goodridge, 798 N.E.2d at 954; ER 267-268 (Cott). At the same time, the states authority to regulate marriage historically has been bound by the deeply personal and intimate nature of marital unions. Thus, while recognizing the states sovereign powers over civil marriage, our courts have also consistently affirmed the understanding of marriage as a fundamental expression of liberty (Zablocki v. Redhail, 434 U.S. 374, 384 (1978)), privacy (Griswold v. Connecticut, 381 U.S. 479, 486 (1965)), intimate choice (Lawrence v. Texas, 539 U.S. 558, 574 (2003)), and association (M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)). This balance between the public and private nature of marriage has always been critical to the institution. It is true that states traditionally defined marriage as being between one man and one woman, but that tradition does not itself justify the continued exclusion of same-sex couples.7 The states powers with respect to defining and regulating
The tradition of marriage as between different-sex couples is based, at least in part, on presumptions of a division of labor along gender lines, and not only procreative abilities. ER 267-268 (Cott). Men traditionally were viewed as 10
marriage are subject to the constitutional guarantees of equal protection and due process, and it is well-established that tradition alone cannot justify perpetual discrimination. See Romer v. Evans, 517 U.S. 620, 633 (1996) (discriminatory classification must serve an independent and legitimate legislative end). And, in many ways, marriage in this country has been characterized as much by change as it has by tradition. Goodridge, 798 N.E.2d at 966-967 (As a public institution and a right of fundamental importance, civil marriage is an evolving paradigm.). The direction of change consistently has been toward removing restrictions on who can marry and promoting equality of the spouses. ER 269-270 (Cott). Extending marriage to same-sex couples falls squarely in line with this tradition. Indeed, many of the features of marriage that we take for granted today would have been unthinkable at our Nations Founding. For centuries (and until relatively recently) men and women were treated unequally, with wives ceding their legal and economic identities to their husbands upon marriage. See, e.g., United States v. Yazell, 382 U.S. 341, 342-343 (1966) (applying law of coverture). Marriage between persons of different races was prohibited, nullified, and even
suitable for certain types of work (providing for the family) and women for others (caretaking), both of which were required for the survival of the household. Id. However, these views are outdated, particularly to the extent that they presume womens abilities to be limited or inferior to mens.
11
criminalized for parts of three centuries. Divorce was difficult, if not impossible, in early America. ER 269-270 (Cott). That civil marriage has endured as a core institution is a testament to both the value of the institution and its ability to evolve in concert with social mores and constitutional principles. II. NEVADA AND HAWAII MARRIAGE LAWS ARE NOT RATIONALLY RELATED TO INTERESTS IN PROCREATION AND CHILDREARING BY DIFFERENT-SEX COUPLES
The chief argument advanced in support of Nevada and Hawaii marriage laws is that these states, like all states, have a legitimate interest in promoting marriage between two people who may produce children, intentionally or not, thereby ensuring that they will raise the children together. Refusing to recognize marriages between same-sex couples does not advance this interest. In fact,
excluding same-sex couples from marriage does not promote the well-being of any children. It does just the opposite by denying their families the dignity, benefits, and protections afforded by marriage. In addition, the notion of using procreative abilities to limit access to marriage is inconsistent with our legal tradition, as the desire or ability to procreate has never been a prerequisite for marriage. Finally, drawing the line at same-sex couples as opposed to other couples who are unable or unwilling to procreate is simply irrational.
12
A.
Excluding Same-Sex Couples From Marriage Does Not Promote The Well-Being Of Children.
All states share a paramount interest in the healthy upbringing of children. However, the exclusion of same-sex couples from marriage works against this interest. The second-class status that Nevada and Hawaii assign to same-sex couples has the unavoidable effect of conferring second-class status on their families as wellan outcome that harms children. 8 As the Supreme Court recently recognized: The differentiation [between state-sanctioned relationships] demeans the couple . . . And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives. Windsor, 133 S. Ct. at 2694 (citation omitted). Indeed, parties and experts on both sides of this debate acknowledge that children benefit when their parents are able to marry. David Blankenhorn, a prominent expert employed by proponents of
Following the Supreme Courts invalidation of Section 3 of DOMA, Nevadas and Hawaiis exclusion of same-sex couples from marriage imposes tangible harms and inequalities that extend to an extensive body of federal law. Windsor, 133 S. Ct. at 2694. Nevada and Hawaii marriage laws now prevent same-sex couples and their families from obtaining important federal benefits and protections otherwise available to married couples. This works significant and practical harm to those families and further undercuts the rationality of state laws that create two classes of state-sanctioned relationships. 13
restrictive marriage laws, admitted that permitting same-sex couples to marry would likely improve the well-being of gay and lesbian households and their children. Lisa Leff, Defense Lawyers Rest Case at Gay Marriage Trial,
Associated Press, Jan. 27, 2010, http://www.boston.com/news/nation/articles /2010/01/27/witness_says_gay_marriage_would_help_children/. A statewide
survey conducted by the Massachusetts Department of Public Health confirmed this conclusion, finding that the children of married same-sex couples felt more secure and protected and saw their families as being validated or legitimated by society or the government. Christopher Ramos, et al., The Effects of Marriage Equality in Massachusetts: A Survey of the Experiences and Impact of Marriage on Same-Sex Couples, The Williams Institute, May 2009, at 9,
http://williamsinstitute.law.ucla.edu/experts/lee-badgett/effects-marriage-equalitymasurvey/. Rather than encourage biological parents to raise their children together, exclusionary marriage laws only impede one set of parentssame-sex couplesin their efforts to provide their children with stable family environments.9 See
According to the 2010 Census, 17% of same-sex households (over 111,000) include at least one child. The Williams Institute, United States Census Snapshot: 2010, at 3, http://williamsinstitute.law.ucla.edu/wp-content/uploads/Census 2010Snapshot-US-v2.pdf. (last visited Oct. 25, 2013). Many of these families live in states that offer no legal recognition to the couples. See, e.g., Sabrina Tavernise, 14
Goodridge, 798 N.E.2d at 963-964 ([T]he task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws.); see also Baker, 744 A.2d at 882; Andersen v. King County, 138 P.3d 963, 1018 (Wash. 2006) (Fairhurst, J., dissenting) (children of same-sex couples . . . actually do and will continue to suffer by denying their parents the right to marry). By depriving the children of same-sex couples of the benefits of being raised in a secure, protected, and respected family unit with two married parents, Nevada and Hawaii laws work against the states efforts to strengthen the modern family in its many variations. Goodridge, 798 N.E.2d at 963 (collecting examples in
Massachusetts). Thus, these laws do not promote the well-being of children; they do just the opposite. B. Same-Sex Parents Are As Capable As Different-Sex Parents Of Raising Healthy, Well-Adjusted Children.
The implication that same-sex couples are somehow less suitable parents is contrary to the experience of the Amici States and scientific consensus. A similar argument was advanced, and rejected, in Loving, when Virginia defended its antimiscegenation law based on its concern for the well-being of children who become the victims of their intermarried parents. See Brief for Appellee, Loving
Parenting by Gays More Common in the South, Census Shows, N.Y. Times, Jan. 19, 2011, at A1. 15
v. Virginia, 388 U.S. 1 (1967) (No. 395), 1967 WL 113931, at *47-48. The argument likewise should be rejected here. The overwhelming scientific consensus based on decades of peer-reviewed research establishes that children raised by same-sex couples fare as well as children raised by different-sex couples. ER 502, 508-510 (Lamb); see also Fla. Dept of Children & Families v. Adoption of X.X.G., 45 So.3d 79, 87 (Fla. Dist. Ct. App. 2010) ([B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise.); Varnum v. Brien, 763 N.W.2d 862, 899 n.26 (Iowa 2009). In fact, the research that has directly compared gay and lesbian parents with heterosexual parents has consistently shown gay and lesbian parents to be equally fit and capable. ER 508-510 (Lamb). Numerous organizations
representing mental health and child welfare professionals have confirmed that same-sex parents are as effective as different-sex parents at raising psychologically healthy and well-adjusted children. 10
These organizations include the most well-respected psychological and childwelfare groups in the nation: the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological Association, the Psychological Association, the American Psychoanalytic Association, the National Association of Social Workers, the Child Welfare League of America, and the North American Council on Adoptable Children. 16
10
In addition, there is no basis for the assertion that children need traditional male and female role models, or that children need mothers and fathers to perform distinct roles in their lives. 11 ER 505-507 (Lamb). These views are disconnected from the changing realities of the American family. Troxel v. Granville, 530 U.S. 57, 63 (2000) (plurality) (recognizing that [t]he composition of families varies greatly from household to household). More importantly, courts have repeatedly rejected gender-based stereotyping by the government. Nevada Dept of Human Res. v. Hibbs, 538 U.S. 721, 733-735 (2003) (finding that government action based on stereotypes about womens greater suitability or inclination to assume primary childcare responsibility is unconstitutional); United States v. Virginia, 518 U.S. 515, 533-34 (1996) (rejecting overbroad generalizations of the different talents, capacities, or preferences of males and females as justifying discrimination) (citations omitted); Stanley v. Illinois, 405 U.S. 645, 656-657 (1972) (striking down a statute that presumed unmarried fathers to be unfit custodians). Nor is there any basis for the suggestion that children necessarily benefit from being raised by two biological parents. ER 513-514 (Lamb).
11
The most
Even if this were true, Nevada and Hawaii (like many other states) allow unmarried same-sex (and different-sex) couples to raise children. Thus, barring same-sex couples from marriage does nothing to advance the purported interest in ensuring traditional gender role-modeling. 17
important factors predicting the well-being of a child include (1) the relationship of the parents to one another, (2) the parents mutual commitment to their childs well-being, and (3) the social and economic resources available to the family. ER 502-503 (Lamb). These factors apply equally to children of same-sex and
different-sex parents, and they apply whether one, both, or neither of these parents is a biological parent. 12 The reality is that both different-sex and same-sex couples become parents in a variety of ways, including through assistive technology, surrogacy, and adoption, and it is in the states interest to promote the well-being of all these families. C. Promoting Responsible Procreation Does Not Justify Restricting Marriage To Different-Sex Couples.
Singling out responsible procreation as the states primary governmental interest advanced by marriage is fundamentally flawed. The argument requires the recognition of a restriction on marriage premised on the ability to procreate, and this notion is antithetical to our legal tradition. Never before has the ability or desire to procreate been a prerequisite for entry into marriage. ER 268 (Cott); see
Of course, many children raised by same-sex parents are raised by one biological parent and his or her partner. Refusing to allow these couples to marry will not make it more likely that the biological parent will instead marry his or her donor or surrogate, for example. 18
12
also In re Marriage Cases, 183 P.3d at 431); Turner v. Safley, 482 U.S. 78, 95-96 (1987). For example, while states have long allowed parties to void marriages where one spouse is physically incapable of intercourse, e.g., Martin v. Otis, 124 N.E. 294, 296 (Mass. 1919); Ryder v. Ryder, 28 A. 1029, 1030 (Vt. 1894), the inability to produce children has not itself been a grounds for annulment. See e.g., Lapides v. Lapides, 171 N.E. 911, 913 (N.Y. 1930). Similarly, some states expressly presume infertility after a certain age for purposes of allocating property, but do not presume that these individuals are not qualified to marry. See e.g., N.Y. Est. Powers & Trusts Law 9-1.3(e) (women over age 55); Il. St. Ch. 765 305/4(c)(3) (any person age 65 or older). Individuals who are not free to procreate (prisoners, for example) still have the right to marry. Turner, 482 U.S. at 94-99. Even parents who are irresponsible about their obligations to their children have the right to marry. Zablocki, 434 U.S. at 389-391. States have an interest in ensuring that couples make responsible choices about having children, as we all want children to be raised by loving, capable parents. However, that is not what opponents of same-sex marriage mean by responsible procreation, and the challenged laws are not rationally related to the interest as they describe it. Opponents use the term responsible procreation to describe a narrow interest in sanctioning marriage to protect the biological children 19
of different-sex couples.
Considering this interest, Nevadas and Hawaiis
recognition of different-sex marriages that do not or cannot produce biological children not only creates an imperfect fit between means and ends, Heller v. Doe, 509 U.S. 312, 321 (1993), but pursues the supposed objective of promoting responsible procreation in a manner that [makes] no sense in light of how [those states] treat other groups similarly situated in relevant respects. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4 (2001), citing Cleburne, 473 U.S. at 447-450; see also Romer, 517 U.S. at 633 (invalidating discriminatory law because it is at once too narrow and too broad). Many different-sex couples either cannot procreate or choose not to, yet these marriage laws are concerned with none of them. If it is the case that states only recognize marriage to further their interest in protecting the children born out of sexual intimacy, then it makes no sense to recognize marriages where one or both spouses are incapable or unwilling to bear children. Instead, the reality is that states recognize marriage to advance many important governmental interests. At the same time, statesand the courtshave also consistently recognized the autonomy to make personal choices about entry into marriage and procreation as a fundamental individual right, not to be restricted without compelling reason. Lawrence, 539 U.S. at 574; M.L.B., 519 U.S. at 116; Zablocki, 434 U.S. at 384;
20
Griswold, 381 U.S. at 486. Thus, states have never before restricted marriage rights based on procreative capabilities. To save an incongruous rationale, some have argued that extending marriage to different-sex couples who lack the ability or desire to procreate nonetheless encourages responsible procreation by promoting the optimal or ideal family structure. However, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married different-sex couples set for their unmarried counterparts. Both different- and same-sex couples model the formation of committed, exclusive relationships, and both establish stable families based on mutual love and support. At best, the modeling theory is so attenuated that the distinction it supposedly supports is rendered arbitrary and irrational. Cleburne, 473 U.S. at 446. At worst, the theory is a poorly disguised attempt to codify discriminatory views as to what constitutes an ideal family. In light of Nevadas and Hawaiis extension of parental rights to gay men and lesbians, and their recognition of same-sex domestic partnerships and civil unions, it is difficult not to conclude that the only purpose for withholding the title of marriage is to send the discriminatory message that some families are simply inferiora purpose the Constitution does not permit. U.S. Dept of Agriculture v. Moreno, 413 U.S. 528, 534-535 (1973) (bare desire to harm unpopular group is not a legitimate governmental interest). 21
III.
SPECULATION ABOUT THE EROSION OF THE INSTITUTION OF MARRIAGE IS DEMONSTRABLY FALSE
Speculation that removing state restrictions on marriage between same-sex couples will erode the institution, as measured by the markers cited below marriage, divorce, and nonmarital birth ratesdoes not justify discriminatory marriage laws. Nor does allowing same-sex couples to marry preclude states from otherwise regulating marriage. The experience of the Amici States who recognize same-sex marriage belies dire predictions about the future of marriage, and establishes that states can and do continue to impose reasonable restrictions on who may marry. A. The Institution Of Marriage Remains Strong In States That Allow Same-Sex Couples To Marry.
The Amici States experience with equal marriage rights should carry substantially more weight than surmise and conjecture in the constitutional analysis of the challenged laws. See, e.g., Plyler, 457 U.S. at 228-229 (rejecting hypothetical justifications for law excluding undocumented children as unsupported); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) ([P]arties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational[.]) (citation omitted). And, the actual data show that the conjecture about the negative impact of same-sex marriage is unfounded. 22
1.
Overall Marriage Rates: Marriage rates in states that permit same-sex Despite a pre-existing national
couples to marry have generally improved.
downward trend in marriage rates, the most recent national data available (from 2011) indicate an increaseor, at minimum, a deceleration in the downward trendin all seven states with marriage equality at the time (Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, and Vermont).13 Typically, states have seen a significant increase in marriage rates during the first, and sometimes, second year after legalizing same-sex marriage. For example, the marriage rate in Massachusetts jumped from 5.6 to 6.5 marriages per thousand residents (a 16.1% increase) in 2004, the first year same-sex couples could marry, and remained at 6.2 in 2005. In Vermont, the marriage rate increased from 7.9 to 8.7 in the first year, and then rose again to 9.3. In the District of Columbia, the marriage rate jumped from 4.7 to 7.6 (a 61.7% increase) in 2010, the first year marriage licenses were issued to same-sex couples. 14
Centers for Disease Control and Prevention, National Vital Statistics System, Marriage Rates by State: 1990, 1995, and 1999-2011, http://www.cdc.gov/nchs/data/dvs/marriage_rates_90_95_99-11.pdf (last visited Oct. 25, 2013) [hereinafter, CDC Marriage Rates]. CDC Marriage Rates, supra note 13; Centers for Disease Control and Prevention, National Vital Statistics System, National Marriage and Divorce Rate 23
14
13
In Massachusetts, where marriage equality has been the law for nearly a decade, the marriage rate stabilized following the legalization of same-sex marriage, but remained higher than the national trend would otherwise predict. From 2005 to 2007, the average annual marriage rate (6.0) was higher than the average rate for the three years preceding same-sex marriage (5.9). Massachusetts marriage rates for 2009 and 2010 were the same as the rate for 2003, the year before same-sex couples could marry. And, in six of the seven states that
permitted same-sex couples to marry as of 2011, the marriage rate remained at or above the level it was the year preceding same-sex marriage. Meanwhile, the national average marriage rate declined steadily from 7.8 in 2005 to 6.8 in 2011. Thus, contrary to predictions, there appears to be a general improvement in marriage rates, or at least a deceleration of the national downward trend, in states allowing same-sex couples to marry. 15 2. Different-Sex Marriage Rates: Although there are limited data
available on different-sex marriage rates in particular, the data that are available do Trends 2000-2011, http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm (last visited Oct. 25, 2013) [hereinafter, CDC National Trends]; Chris Kirk & Hanna Rosin, Does Gay Marriage Destroy Marriage? A Look at the Data, Slate.com, May 23, 2012, http://www.slate.com/articles/double_x/doublex/2012/ 05/does_gay_marriage_affect_marriage_or_divorce_rates_.html [hereinafter, Kirk & Rosin] (last visited Oct. 25, 2013).
15
Kirk & Rosin, supra note14; CDC Marriage Rates, supra note13. 24
not support the theory that same-sex marriage has a negative effect on different-sex marriage rates.16 To the contrary, it appears that rates of different-sex marriage in states licensing same-sex marriages are equivalent to rates in states that do not recognize same-sex marriage.17 In fact, in some states, the number of different-sex marriages increased in the years following the states recognition of same-sex marriages. In Connecticut, for example, the number of different-sex marriages increased by 2.2% from 2009 to 2012.18 In Iowa, the number of different-sex marriages also increased slightly in 2010 and 2011.19 In Massachusetts, the
number of different-sex marriages in the first three years after the state began licensing same-sex marriage (2005-2007) was higher than it was in the year before (2003).20
Alexis Dinno & Chelsea Whitney, Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage, PloS ONE, Vol. 8, No. 6 (June 2013), http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0065730 (last visited Oct. 25, 2013).
17 18 19
16
Dinno & Whitney, supra note 16, at 5. Data provided by the Connecticut State Vital Records Office (July 2013).
Iowa Department of Public Health, Bureau of Vital Statistics, 2010 and 2011 Vital Statistics of Iowa, available at: http://www.idph.state.ia.us/apl/ health_statistics.asp#vital (last visited Oct. 25, 2013). Certificate of Marriage data provided by the Massachusetts Registry of Vital Records and Statistics (July 2013). 25
20
3.
Divorce Rates: The Amici States experience directly contradicts the
suggestion that allowing same-sex couples to marry leads to increased rates of divorce. In four of the seven states that allowed same-sex couples to marry as of 2011, divorce rates for the years following legalization stayed at or below the divorce rate for the year preceding it, even as the national divorce rate increased.21 In Massachusetts, the divorce rate decreased from 2.5 per thousand residents in 2003 to as low as 2.0 in 2008, four years after legalization. Connecticuts divorce rate dropped from 3.4 in 2008 to 2.9 in 2010, a change of 14.7%. Similarly, Iowa, New Hampshire, and Vermont all saw significant drops in their divorce rates during the first year in which same-sex couples could marry. Iowa, for example, saw its lowest number of divorces since 1970.22 Moreover, as of 2011, six of the seven jurisdictions that permitted same-sex couples to marry (Connecticut, the District of Columbia, Iowa, Massachusetts, New York, and Vermont) had a divorce rate that was at or below the national average. In fact, four of the ten states with the lowest divorce rates in the country
21 22
Kirk & Rosin, supra note 14.
Centers for Disease Control and Prevention, National Vital Statistics System, Divorce Rates by State: 1990, 1995, and 1999-2011, http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_95_99-11.pdf (last visited Oct. 25, 2013) [hereinafter, CDC Divorce Rates]; Rod Boshart Lee, Marriages Up, Divorces Down in Iowa, Sioux City Journal, July 23, 2010. 26
were states that allowed same-sex couples to marry. Iowa and Massachusetts had the lowest and third-lowest rates, respectively. 23 4. Nonmarital Births: The suggestion that allowing same-sex couples to
marry will lead to an increase in nonmarital births is likewise unsupported. Massachusettss nonmarital birth rate has been well below the national average for years, and that continued after same-sex couples began to marry. In fact, as of 2011, the most recent year for which data are available, five of the seven states that allowed same-same couples to marry (Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont) had nonmarital birth rates below the national average. 24 The total number of births to unmarried women nationally increased from 1940 through 2008. Notably, it has declined since. The drop from 2010 to 2011 was the third consecutive decline, totaling 11% since 2008. During that same time period (2008-2011), seven states (including California) extended marriage to samesex couples. There is simply no correlation between same-sex marriage and
increases in nonmarital births. In fact, in Iowa, the percentage of women having children outside of marriage actually decreased from 35.2% in 2009, the first year CDC Divorce Rates, supra note 22; CDC National Trends, supra note 14; Kirk & Rosin, supra note 14. See Brady E. Hamilton, Joyce A. Martin, & Stephanie J. Ventura, National Vital Statistics Reports, Birth: Preliminary Data for 2011, Vol. 61, No. 5, Table I1, Oct. 3, 2012 http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_05_tables.pdf. 27
24 23
same-sex couples could marry, to 34.2% the following year. The rate decreased again in 2011 to 33.8%. 25 B. Allowing Same-Sex Couples To Marry Does Not Threaten The States Ability To Regulate Marriage.
It is likewise not true that once the link between marriage and procreation is taken away, it becomes virtually impossible for states to limit entry to marriage in any meaningful way. Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1118 n.37 (D. Haw. 2012). Rather, as Loving instructs, states simply may not circumscribe access to marriage, and thus restrict a fundamental right, based on a personal trait that itself has no bearing on ones qualifications for marriage. States can continue to exercise their sovereign power to regulate marriage subject to constitutional guarantees and protections. In Loving, the Supreme Court characterized Virginias anti-miscegenation laws as rest[ing] solely upon distinctions drawn according to race, and proscribing generally accepted conduct if engaged in by members of different races. 388 U.S. at 11. Nevada and Hawaii marriage laws similarly restrict the right to marry by drawing distinctions according to gender and by using that
Hamilton, et al., supra note 24, at 3; Brady E. Hamilton, Joyce A. Martin, & Stephanie J. Ventura, National Vital Statistics Reports, Birth: Preliminary Data for 2009, Vol. 59, No. 3, Table I-2, Dec. 21, 2010, http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_03.pdf. 28
25
personal characteristic to define an appropriate category of marital partners. Focusing on this reliance on inherent, personal traits to regulate marriage illuminates the limiting principle that the district courts found lacking: states may not limit an individuals ability to enter into marriage or choice in spouse based on an inherent, personal characteristic that does not bear upon his or her capacity to consent to the marriage contract. Indeed, this focus on inherent characteristics is consistent with our legal tradition of considering suspect disparate treatment based on personal characteristics that typically bear no relationship to an individuals ability to perform or contribute to society. 26 See, e.g., Frontiero v. Richardson, 411 U.S. 677, 686-687 (1973). Applying this principle, and removing gender from spousal restrictions, does not result in all groupings of adults having an equal claim to marriage. In
furtherance of the interest in maintaining the mutuality of obligations between spouses, states may continue to lawfully limit the number of spouses one may have at any given time. Unlike race or gender, marital status is not an inherent trait, but rather is a legal status indicating the existence (or not) of a marital contract, the Although Amici States contend that sexual orientation discrimination should be subject to heightened scrutiny, it is not necessary to accept that Nevada and Hawaii laws involve suspect classifications for purposes of this analysis. The point here is not that these laws draw suspect lines, but that they draw upon a personal characteristic, unrelated to ones qualification for marriage (i.e., ability to consent or current marital status), to define an individuals marriage choices. 29
26
presence of which renders a person temporarily ineligible to enter into additional marriage contracts. States similarly may continue to lawfully prohibit marriage between certain relatives in order to guard against a variety of public health outcomes. Consanguinity itself is not a personal trait, but rather defines the nature of the relationship between particular individuals and thus exists only when an individual is considered in relation to others. Finally, in order to protect children against abuse and coercion, states may regulate entry into marriage by establishing an age of consent. 27 Likewise, age is not an intrinsic trait, as it changes continually and the restriction is therefore temporary. Thus, even after gender is removed from consideration, other state regulations continue to advance important governmental interests and remain valid. Nevadas and Hawaiis reliance on gender to regulate marriage is not saved by the argument that exclusionary marriage laws do not actually discriminate based on gender or sexual orientation because, in theory, gay men and lesbians have the same right to marry as heterosexual men and women. Opponents of same-sex marriage are not the first to argue that symmetry in a laws restrictions precludes a finding of invidious discrimination. In Loving, Virginia argued that because its anti-miscegenation laws punished people of different races equally, those laws, For similar reasons, states may regulate entry into marriage based on mental capacity because that bears upon an individuals ability to consent. 30
27
despite their reliance on racial classifications, did not constitute discrimination based on race. 388 U.S. at 8. In reality, anti-miscegenation laws in Virginia and elsewhere were designed to, and did, deprive a targeted minority of the full measure of human dignity and citizenship by denying them the freedom to marry the partner of their choice. Nevada and Hawaii marriage laws, if upheld, would achieve the same result. The argument that Nevada and Hawaii laws do not discriminate fails to acknowledge the practical and symbolic significance of marriage, including the paramount importance of choice in ones spouse. Quite simply, these laws prevent gay men and lesbians from fully realizing what the Supreme Court described as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Loving, 388 U.S. at 12. This result is in clear conflict with our Constitution.
31
CONCLUSION For the foregoing reasons, the Court should reverse the judgments of the district courts below.
Respectfully submitted, /s/ Genevieve C. Nadeau MARTHA COAKLEY Attorney General GENEVIEVE C. NADEAU* JONATHAN B. MILLER Assistant Attorneys General COMMONWEALTH OF MASSACHUSETTS Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 genevieve.nadeau@state.ma.us Dated: October 25, 2013 *Counsel of Record
32
CERTIFICATE OF COMPLIANCE WITH RULE 32 Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and 29(d) because this brief contains 6,918 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Times New Roman in 14-point type.
/s/ Genevieve C. Nadeau Counsel for Amici Curiae Dated: October 25, 2013
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing Brief of Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington As Amici Curiae in Support of Appellants with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 25, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Genevieve C. Nadeau Counsel for Amici Curiae Dated: October 25, 2013
Exhibit 14
UTAH STATE
2004 LEGISLATIVE SESSION
FEBRUARY 24, 2004 (DAY 37)
0:37-7:02 METER COUNT and 49:57-1:03:07 METER COUNT
801.484.2929
Q & A Reporting, Inc.

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 occasion.
SPEAKER OF THE HOUSE:
Represent Christensen. Thank you,
REPRESENTATIVE CHRISTENSEN: Mr. Speaker.
Members of the Body, this is a momentous And I hope we have everyone in attention -- in We -- we But this is
attendance and also focusing on this as well. passed a statute that addressed this issue.
a joint resolution that would place on the ballot this coming November the question for the people of Utah to decide whether the relationship of marriage, which society endorses and sanctions and has for generations and upon which 200 years of constitutional precedent is based, should be limited to the union of a man and a woman and should relatively recent claims of other claimed equivalence be given comparable status. I would submit that there is a tide of events in the affairs of men and that the confusion and anarchy of Massachusetts and San Francisco and elsewhere have reached a boiling point after similar issues have been simmering for some time. We have come face to face with what Abraham Lincoln long ago said in his day would continue to be the internal struggle between right and wrong that would go on forever and ever. I have cited before and would ask you to look
801.484.2929 Q & A Reporting, Inc.

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
at it again the Lofton case, which was just decided just the end of January by the Federal Eleventh Circuit Court of Appeals striking down homosexual adoptions in Florida based on Florida statute, and in that 50-page-plus opinion gave a succinct summation of all the constitutional history on this point. And although the advocates of same sex unions argue that they had many emotional similarities and emotional ties and that they constituted a psychological equivalent of a family, the Court found that although they were willing to recognize the right of privacy that there was no legal basis, no historical basis, no cultural basis whatsoever to pull that pendulum all the way over and demand public sanction and public recognition. And so in the words of Lincoln long ago it's altogether fitting and proper that we do this at this time. We do live in a nation that -- where governments
derive their power from the consent of the governed and it's a government of the people, by the people, and for the people and not of the courts, by the courts, or for the courts. The question is whether four or five judges or justices can overrule democracy. Again I refer back to
the Lofton case where the Court said that there is a


- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
strong constitutional basis for a government regulating its order and its morality. We should not shy away from For You can
the notion that this is, indeed, a moral question. surely it is, and we make no apologies for that.
be compassionate and empathetic, kind and considerate without lowering standards or transforming fundamental principles upon which our society is based. It was John Adams long ago that said the constitution is only suited and fit for a moral people. It is unfit for any other. And so on this important question, it's entirely fitting and appropriate that we submit it to the people. We have given them the right to decide sales tax If you look at
questions, asset forfeiture, you name it. our state constitution, our preamble says:
Grateful to Almighty God for life and liberty, we, the people of Utah, in order to secure and perpetuate the principles of free government do ordain and establish this constitution. Also from Article I: Frequent recurrence to fundamental principles is essential to the security of -- I'm sorry, excuse me -- individual rights and the perpetuity of free government. With that in mind, I would ask you, once again,

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
to do as Lincoln suggested long ago and it's so relevant today. I make no apologies for excessive dependence on When you are being asked to overthrow it,
history.
history becomes especially relevant. But he said that he never had a political sentiment in his lifetime that wasn't directly traceable to the Declaration of Independence. SPEAKER OF THE HOUSE: Representative Did you want
Christensen, your five minutes is expired. to move to extend? REPRESENTATIVE CHRISTENSEN: minute, please? SPEAKER OF THE HOUSE:
May I have one
Representative
Christensen moves to extend for one minute. Those in favor of the motion say "aye." (Vote cast.) SPEAKER OF THE HOUSE: (Vote cast.) SPEAKER OF THE HOUSE: Motion passes. Opposed say "no."
Representative Christensen, proceed. REPRESENTATIVE CHRISTENSEN: Thank you.
When Judge Douglas countered with a distortion of the Declaration of Independence in his day, Lincoln said: If you've been taught false doctrine, I plead

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
with you to come back to the pure waters of the Declaration of Independence. What we find is
self-evident truths, references to the God of nature, nature's laws and appeal to Devine Providence and the Supreme Judge of the world. It was Washington long ago that said it is impossible to govern without the Bible. But it seems in modern times America may be persistent in trying to do so. I hope that we can come
back to these founding principles and again assure everyone that although people would talk in the abstract of freedom and liberty and equal protection that those principles have been reviewed and discussed at length in our court opinions. And the courts have deferred to the
states in the area of family law and domestic institutions. It's one of the precious areas where we
truly have autonomy, the morality of a people as reflected in its laws. I sincerely hope that Utahns will
address this important issue, adopt exemplary legislation, and reaffirm the principles upon which our society is based. Thank you. SPEAKER OF THE HOUSE: (Meter count: (Meter count:
801.484.2929
Thank you.
7:02.) 49:57.)

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yet.
UNIDENTIFIED SPEAKER:
I support the resolution
because I will not accept same-sex unions as marriage as sanctified. I will not because that's in my heart. And
that's the way I feel. them deeply, thank you.
But I tolerate them and respect
Thank you.
Representative Litvack was next. REPRESENTATIVE LITVACK: Thank you.
Mr. Speaker, will the sponsor yield to a very short question? SPEAKER OF THE HOUSE: Christensen, will you yield? REPRESENTATIVE CHRISTENSEN: of a very long answer, but, yes. REPRESENTATIVE LITVACK: short would apply. SPEAKER OF THE HOUSE: Representative Christensen. UNIDENTIFIED SPEAKER: REPRESENTATIVE LITVACK: you will allow me to do this. the right to make a motion. SPEAKER OF THE HOUSE: That's fine. Yes, you haven't spoken (Inaudible.) Mr. Speaker, I hope Great come back, Well, I was hoping You run the risk Representative
I would like to reserve
That right will be so noted. Thank you. 7
REPRESENTATIVE LITVACK:
801.484.2929

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there.
REPRESENTATIVE CHRISTENSEN: something. REPRESENTATIVE LITVACK:
I thought I heard
Can you,
Representative, I -- I've heard you speak on this issue many times. I sat in on a committee hearing and am very
familiar with the court rulings that you stated. Without referring to the court rulings, I'm just curious as far as to -- in your opinion the rational basis for this amendment. REPRESENTATIVE CHRISTENSEN: With all due
respect, you just proposed another rhetorical question. To set aside all constitutional authority and say pull it out of the air is what this debate is all about. I can't
believe the characterization, with all due respect to Representative Biskupski, I just heard an entire distortion of previous statements including the speakers, which is consistent with the distortion of the constitution. To then ask me to set it aside and to try to give you additional rational basis, I would tell you this, what you're really asking is: in the first place? Well, just go back to 1954. Let's just stop How did we get here
A grateful nation on the heels of World War II
after Churchhill concludes his multivolume treatise on


- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
the democracies of the world, he says in his closing line: And thus for the democracies of the world free to resume the follies that summarily cost them their lives. What did our nation do, so-called greatest generation? They add the words "under God" to the Pledge What happens if you come forward? You've
of Allegiance.
got a national nervous breakdown in the '60s.
You've got
radical individualism and moral relativism gone mad. You've got separation of Church and State turned on its head. And then we're supposed to have a reasonable
discussion in 2004 that makes any sense whatsoever. When you take God and religion and constitutional authority out of the picture and say, "Now with just intellectuals and logic and reasoning, can you try and tell me why I can't have my way? Why 1 percent
of the population doesn't have an affirmative right to transform all of civilization." So I would just say it's very difficult to engage in such a discussion. today. REPRESENTATIVE LITVACK: apologize. Well, let me -- I I don't think I can do so
Let reframe the question and maybe make it a
little bit easier for you.


- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
I heard stated over and again this is about civilization. civilization. This is to prevent the downfall of our This is to protect marriage as stated in
the language in placement -- in your rationale in placement where we do -- where you're proposing the constitution is about protecting marriage. I'm having a hard time struggling -- and maybe you can put it down to an individual level for me -- how is my life, my marriage, going to be made more stable or stronger by this amendment? REPRESENTATIVE CHRISTENSEN: If you believe in
radical individualism, you can go off in a private corner and you can answer that question. If you believe as the
founders did that the reason self-government could work -- and let me answer it this way, if I might: 1837 we talked about other nations. In
We have a famous
Australian immigrant who comes to our country, great scholar, Francis Grund. After spending time here like
(Inaudible) did, this was his conclusion, reflecting the morality of those who have gone before us. He said:
In all the world few people who have so great respect for the law and are so well able to govern themselves, perhaps they are the only people capable of enjoying so large a portion of liberty without abusing it. I consider the domestic virtue of the
801.484.2929
10

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Americans as the principal source of all their other qualities. It acts as a promoter of industry, a
stimulus to enterprise, the most powerful restraint on public vice, which is the collective exercise of individual choice and agency and how it translates into public virtue. But listen to this: No government could be established on the same principle as that of the United States with a different code of morals. The American constitution
is remarkable for its simplicity, but it could only suffice if people are habitually correct in their actions. It would be utterly inadequate to the Switzerland, Norway,
wants of a different nation: all the ones you heard about.
And then this amazing warning: Change the domestic habits of the Americans, their religious devotion, their high respect for morality, and it will not be necessary to change a single letter in the constitution in order to bury the whole -SPEAKER OF THE HOUSE: your time has expired. REPRESENTATIVE LITVACK: SPEAKER OF THE HOUSE:
801.484.2929
Representative Litvack,
I only got 30 seconds? 30 seconds? 11

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minutes?
REPRESENTATIVE LITVACK:
No, if I could extend
for maybe two minutes, I'd appreciate it. SPEAKER OF THE HOUSE: I didn't hear how many
REPRESENTATIVE LITVACK: SPEAKER OF THE HOUSE:
Two minutes. Representative Litvack Discussion of
moves that he be extended for two minutes. the motion seeing none, all in favor "aye." (Vote cast.) SPEAKER OF THE HOUSE: (Vote cast.) SPEAKER OF THE HOUSE: Representative Litvack. REPRESENTATIVE LITVACK: Mr. Speaker. Thank you,
Opposed say "no."
Motion passed.
I'm not going to place my amendment because I know what the results of it will be. But maybe the more
appropriate place for this in our constitution is under Article III where we also forbid polygamy. Because what
this -- what this should be properly titled is "Same Sex Marriage Forbidden." I asked a simple question: going to be made more stable? better by this amendment? Because it's not.
How is my marriage
How is my life going to be
And I didn't get an answer.
12

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 possible.
Our civilization is not going to become more stable by this amendment. This is very simply about
forbidding an action, whichever way we feel about it. I've heard a lot of talk about judicial activism over this entire session. And it's interesting
in comments made by my first question the year 1954 was brought up. Very important year. Because what some may
dismiss as judicial activism, I look at a ruling that changed this country for the better forever. That was
the year, if I am correct in my history, of Brown versus Board of Education. Was that judicial activism? walls of separate but equal? it wasn't for that ruling. SPEAKER OF THE HOUSE: your time has expired. You want to move to extend for how long? REPRESENTATIVE LITVACK: Forty-five seconds, if Representative Litvack, Breaking down the
Where would we be today if
Representative Litvack Those
would like to extend for an additional 45 seconds. in favor of the motion say "aye." (Vote cast.) SPEAKER OF THE HOUSE: (Vote cast.)
Opposed say "no."
13

- February 24, 2004
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 passes.
The rule of motion
Proceed. REPRESENTATIVE LITVACK: Mr. Speaker. We are -- have always been an evolving nation. We have never been perfect, nor will we ever be. At the Thank you,
same time, that the founders and the framers of our constitution talked about what we talked about today, we had slavery. rights. Let's leave room for justice, for equality. Let's leave room to evolve as a people, as a community. This amendment does not allow that. leaves us stuck -SPEAKER OF THE HOUSE: your time has expired, okay. Representative Holdaway was next. REPRESENTATIVE HOLDAWAY: Mr. Speaker. I respectfully request previous question. SPEAKER OF THE HOUSE: been called. Previous question has Thank you, Representative Litvack, This amendment For years we fought the battle for equal
It would have the effect of cutting off
debate on the bill. Those in favor of previous question say "aye."

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(Vote cast.) SPEAKER OF THE HOUSE: (Vote cast.) SPEAKER OF THE HOUSE: than two-thirds. Representative Christensen, back to you for summation on the bill. REPRESENTATIVE CHRISTENSEN: Mr. Speaker. Thank you, The rule passes by more Opposed say "no."
And thank you, everyone, for your comments.
We measure time forward and backwards from the birth of Jesus Christ. And we look to him. We not only
pray each morning, but we look to him for the exemplar that he is. He loved all people. He blessed all people. But he didn't He called
He showed great compassion and mercy.
lower his standards while he was doing it. people to come up to those standards.
I was cut off while giving you the closing line from Francis Grund. I will give it to you again:
Change the domestic habits of the Americans, their religious devotion, their high respect for morality, and it will not be necessary to change a single letter in the constitution in order to vary the whole form of their government. Those that would like to take us back to some committee for diversion and delay would simply throw up
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more dust in the eyes that is not necessary at this point. We have the ability to go forward. It's urgent
that we -- that we do so.
There is overwhelming public
support for this consistent with what Thomas Jefferson has said: It is rare that the public sentiment decides immorally or unwisely. And the individual who
differs from it ought to distrust and examine well his own opinion. Rather than try to transfer all of society and civilization, it would be best to go back and examine -to trust and examine and look at the wisdom. things are not true because they're old. because they're true. These
They're old
Where can you say in the time of
your representation that you've ever had an opportunity to so clearly reaffirm and keep from being just a hollow ceremonial recital as politicians make it so at the conclusion of so many addresses: But can he? God bless America.
It's not a moral -- it's not I am grateful that this body It's wrong.
political electioneering.
is willing to take a stand on abortions. And we should have moral legislation.
And let America
look to Utah if they want to for exemplary legislation. And we make no apologies on behalf of the people of trying to give anchor to the ship.
801.484.2929
To be all sail and no 16

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
anchor is a mistake, indeed. I shared with you once before, I share with you again, going all the way back to Cicero 2000 years ago, when he said: I tell you that freedom does not mean the freedom to exploit law in order to destroy it. It
is not freedom which permits the Trojan horse to be wheeled within the gates and those within it to be heard the name of tolerating a different point of view. We're respectful, we're empathetic and compassionate. It is a total distortion of the Civil
Rights Act and the Civil War itself to say that slavery is precedent for same sex marriage. was: You can -- you must have closed questions and an open society when you come down to fundamental morality. He said slavery was fundamentally, morally wrong. And that no matter what public sentiment could be What Lincoln said
mustered by those that wanted to advocate popular sovereignty, you stand on the moral question. And so you come back as he said himself -- he pleaded with America. He said, "If you have been taught
false doctrine come back to the Declaration of

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Independence." And I would say today with appropriate references to the God of nature and nature's laws, it is all together fit and proper, said Lincoln, to do this. And I would ask you to please support this resolution. Let the people of Utah set the laws of Utah.
And let us reaffirm the traditional and legal definition of marriage as the union of a man and woman and then go forward in a compassionate way in everyday life with those rights the courts have recognized for those who insist on privacy and have been given it and now want public sanction and public recognition. (Meter count: 1:03:07) Thank you.
801.484.2929
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- February 24, 2004
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801.484.2929
CERTIFICATE State of Utah County of Salt Lake ) ss. )
I, Judy A. Holdeman, a Registered Professional Reporter and Certified Court Transcriber and Notary Public in and for the State of Utah, do hereby certify: That the foregoing digitally recorded proceedings were transcribed to the best of my ability; That the same constitutes a true and correct transcription of said digitally recorded proceedings to the best of my ability; WITNESS MY HAND at Salt Lake City, Utah, this 15th day of November, 2013.
_______________________________ Judy A. Holdeman, RPR Utah License No. 107618-7801 State of Utah Notary Public Commission Expires: March 17, 2015
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Peggy A. Tomsic (3879) James E. Magleby (7247) Jennifer Fraser Parrish (11207)

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Case No. 2:13-cv-00217-RJS Honorable Robert J. Shelby

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Rules Local Rule DUCivR 56-1 ...................................................................................... x, xii, xv

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Same-sex couples closely resemble opposite-sex couples, including in the

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