Amicus Brief - Scholars of Family Law

No.
14-31037
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD;
and COURTNEY BLANCHARD,
Plaintiffs Appellants
v.
JAMES D. CALDWELL, in his official capacity as the
Louisiana Attorney General, also known as Buddy Caldwell,
Defendant Appellee
JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD;
COURTNEY BLANCHARD; ROBERT WELLES; and GARTH BEAUREGARD,
v.
DEVIN GEORGE, in his official capacity as the State Registrar and Center Director at
Louisiana Department of Health and Hospitals; TIM BARFIELD, in his official
capacity as the Louisiana Secretary of Revenue; KATHY KLIEBERT, in her official
capacity as the Louisiana Secretary of Health and Hospitals,
Defendants Appellees
FORUM FOR EQUALITY LOUISIANA, INCORPORATED; JACQUELINE M. BRETTNER;
M. LAUREN BRETTNER; NICHOLAS J. VAN SICKELS; ANDREW S. BOND; HENRY
LAMBERT; R. CAREY BOND; L. HAVARD SCOTT, III; and SERGIO MARCH PRIETO,
v.
TIM BARFIELD, in his official capacity as Secretary of the Louisiana Department of
Revenue; DEVIN GEORGE, in his official capacity as Louisiana State Registrar,
Defendants Appellees
On Appeal from the United States District Court for the Eastern District of
Louisiana, Case Nos. 2:13-cv-5090, 2:14-cv-97, 2:14-cv-327
The Honorable Martin Leach-Cross Feldman, District Judge
BRIEF OF AMICI CURIAE JOAN HEIFETZ HOLLINGER,
COURTNEY JOSLIN, MONICA HOF WALLACE, AND
FIFTY SEVEN OTHER PROFESSORS IN FAMILY LAW
IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL
(Counsel Listed on Inside Cover)
Case: 14-31037 Document: 00512814842 Page: 1 Date Filed: 10/24/2014

Stuart Plunkett
Andrew Bernick
Sara Bartel
MORRISON & FOERSTER LLP
425 Market St.
San Francisco, California 94105
Telephone: 415.268.7000
Facsimile: 415.268-7522
Email: sbartel@mofo.com

Counsel for Amici Curiae
Family Law Professors

i
No. 14-31037
Robicheaux, et al. v. Caldwell, et al.

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the Judges of
this Court may evaluate possible disqualification or recusal.
PLAINTIFFS-APPELLANTS:

Individual Plaintiffs/Appellants: Garth
Beauregard; Courtney Blanchard; Nadine
Blanchard; Andrew S. Bond; R. Carey
Bond; Jacqueline M. Brettner; M. Lauren
Brettner; Henry Lambert; Derek Penton;
Sergio March Prieto; Jonathan P.
Robicheaux; Nicholas J. Van Sickels; L.
Havard Scott, III; and Robert Welles.

Entity Plaintiff/Appellant: Forum For Equality
Louisiana, Inc. is a Louisiana nonprofit
corporation with its primary office in New
Orleans, Louisiana. The Forum is a social
welfare organization within the meaning of
Section 501(c)(4) of the Internal Revenue
Code. The Forum has no parent
corporation(s). As a 501(c)(4)
organization, The Forum does not have
shareholders or issue stock and, thus, is not
a nongovernmental corporate entity in
which a publicly held corporation owns
10% or more of its stock.

COUNSEL FOR PLAINTIFFS-
APPELLANTS:

Paul D. Castillo; Karen L. Loewy; Omar
Gonzalez-Pagan; Susan L. Sommer;
Camilla B. Taylor; Kenneth D. Upton, Jr.
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.

Scott J. Spivey
LANDRY & SPIVEY

Richard G. Perque
LAW OFFICE OF RICHARD G. PERQUE

J. Dalton Courson; Brooke C. Tigchelaar;
John M. Landis; Lesli D. Harris; Maurine
Wall
STONE PIGMAN WALTHER
WITTMANN, L.L.C.


DEFENDANTS-APPELLEES:

Tim Barfield, in his official capacity as the
Louisiana Secretary of Revenue;
James D. Caldwell, in his official capacity as
the Louisiana Attorney General, also
known as Buddy Caldwell (Defendant
Caldwell was dismissed below and the
propriety of his dismissal is not raised on
appeal);
Devin George, in his official capacity as the
State Registrar and Center Director at
Louisiana Department of Health and
Hospitals;
Kathy Kliebert, in her official capacity as the
Louisiana Secretary of Health and
Hospitals.

COUNSEL FOR DEFENDANTS-
APPELLEES:

J. Michael Johnson
LAW OFFICES OF MIKE JOHNSON, LLC

Stuart Kyle Duncan (DUNCAN PLLC);
Angelique Duhan Freel; Jessica M. P.
Thornhill
LOUISIANA DEPARTMENT OF JUSTICE

AMICI CURIAE:

Individual Amici (below): Helen M. Alvare;
Douglas W. Allen; Ryan T. Anderson;
Jason S. Carroll; David J. Eggebeen;
Robert P. George; Sherif Girgis; Allen J.
Hawkins, Jr.; Byron R. Johnson; Alan J.
Hawkins; Catherine R. Pakaluk; Joseph
Price; Mark D. Regnerus; Katherine
Shaw Spaht; and John Randall Trahan.

Entity Amici
1
below: American Civil
Liberties Union Foundation of Louisiana;
American Military Partner Association;
City of New Orleans; Donaldson
Adoption Institute, Evan B. Donaldson
Adoption Institute; Lambda Legal
Defense and Education Fund, Inc.;
Marriage Law Foundation; National
Center for Lesbian Rights; OutServe
SLDN Inc.

COUNSEL FOR AMICI (below):

Candice C. Sirmon; Justin Paul Harrison
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF NEW
ORLEANS

Arthur L. Stewart
ARTHUR L. STEWART, ATTORNEY AT
LAW, LLC

Ben E. Clayton
BEN E. CLAYTON, ATTORNEY AT LAW

Gregory Scott LaCour; Amanda M.
Pendleton
DAVID J. LUKINOVICH, APC

Ryan P. Delaney
DELANEY & ROBB, ATTORNEYS AT
LAW, LLC

1
Counsel lacks information about the structures of the entity amici, including parent
entities, related entities, or shareholders.

COUNSEL FOR AMICI (continued):

Felix J. Sternfels
FELIX J. STERNFELS, ATTORNEY AT
LAW

F. Evans Schmidt
KOCH & SCHMIDT, LLC

John Bennett Wells
LAW OFFICES OF JOHN B. WELLS

Sharonda R. Williams
NEW ORLEANS CITY ATTORNEYS
OFFICE

Daniel R. Atkinson, Jr.
PERRY, ATKINSON, BALHOFF,
MENGIS & BURNS, LLC

Warren L. Montgomery
WARREN L. MONTGOMERY,
ATTORNEY AT LAW

Amici Curiae professors and experts of family law (see Appendix A) are
individuals signing in their individual capacity; they have no parent corporation or
any publicly held corporation that owns 10% or more of its stock.

Dated: October 24, 2014 s/ Sara Bartel
Sara Bartel
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
Tel: (415) 268-6000
Fax: (415) 268-7522

Family Law Scholars


iv
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................................vi
INTEREST OF AMICI CURIAE .............................................................................. 1
SUMMARY OF ARGUMENT ................................................................................ 1
ARGUMENT ............................................................................................................ 5
I. PROCREATION IS NOT A NECESSARY ELEMENT OF
MARRIAGE ................................................................................................... 5
A. The Ability or Desire To Procreate Has Never Been the
Defining Feature of or a Prerequisite for a Valid Marriage ................. 6
B. The Constitutional Rights To Marry and To Procreate Are
Distinct and Independent ...................................................................... 9
II. SOCIAL SCIENCE AND STATE AND FEDERAL LAW
CONTRADICT A CLAIMED PREFERENCE FOR GENDER-
DIFFERENTIATED PARENTING ........................................................... 10
A. Louisiana Does Not Require a Biological Relationship To
Establish a Legal Parent-Child Relationship ...................................... 10
B. Louisiana Has Eliminated Marriage Laws Based on Gender
Stereotypes ......................................................................................... 12
C. A Desire To Promote Gender-Differentiated Parenting Is a
Constitutionally Impermissible Interest ............................................. 14
D. Social Science Refutes Claims About Child Outcomes Based
on Parents Gender or Sexual Orientation ......................................... 17
E. Marriage Is Open to Virtually Any Different-Sex Couple,
Irrespective of Their Ability To Be Optimal Parents ..................... 20
III. LOUISIANAS MARRIAGE BAN BEARS NO RATIONAL
RELATIONSHIP TO THE WELL-BEING OF CHILDREN ..................... 21
A. The Marriage Ban Does Nothing To Further the Well-being of
Children Raised by Different-Sex Couples ........................................ 22
B. The Marriage Ban Harms the Well-being of Children Raised by
Same-Sex Couples .............................................................................. 24

v
C. Denying Rights and Protections to Children Is a
Constitutionally Impermissible Means of Influencing Their
Parents Behavior ............................................................................... 26
CONCLUSION ....................................................................................................... 29


vi
TABLE OF AUTHORITIES
Page(s)
CASES
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ...................................................................................... 20, 21
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014) , cert. denied, Schaefer v. Bostic, 83
U.S.L.W. 3189 (U.S. Oct. 6, 2014) .................................................................... 19
Califano v. Goldfarb,
430 U.S. 199 (1977) ............................................................................................ 15
De Leon v. Perry,
975 F. Supp. 2d 632 (W.D. Tex. 2014) .............................................................. 23
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) ............................................................. 19
Eisenstadt v. Baird,
405 U.S. 438 (1972) .............................................................................................. 9
Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................................................................ 15
Geiger v. Kitzhaber,
994 F. Supp. 2d 1128 (D. Or. 2014) ................................................................... 23
Gomez v. Perez,
409 U.S. 535 (1973) (per curiam) ....................................................................... 27
Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ............................................................................. 25
Griswold v. Connecticut,
381 U.S. 479 (1965) .......................................................................................... 6, 9
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) .................................................................................. 18, 19
(continued)
Page

vii
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) .................................................................................... 25
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) ............................................................................................ 17
Kirchberg v. Feenstra,
450 U.S. 455 (1981) ............................................................................................ 15
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014), cert. denied,
Herbert v. Kitchen, 83 USLW 3189 (U.S. Oct. 6, 2014) ....................... 19, 20, 23
Latta v. Otter,
No. 1:13-cv-00482, 2014 WL 1909999 (D. Idaho May 13, 2014), affd
Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) ... 24, 25
Lawrence v. Texas,
539 U.S. 558 (2003) .......................................................................................... 6, 8
Levy v. Louisiana,
391 U.S. 68 (1968) .............................................................................................. 27
Lovell v. Lovell,
378 So. 2d 418 (La. 1979) .................................................................................. 13
Meyer v. Nebraska,
262 U.S. 390 (1923) ............................................................................................ 17
Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ............................................................................................ 17
Nev. Dept of Human Res. v. Hibbs,
538 U.S. 721 (2003) ............................................................................................ 15
(continued)
Page

viii
Orr v. Orr,
440 U.S. 268 (1979) ...................................................................................... 13, 15
Pace v. State ex rel La. State Emps. Ret. Sys.,
648 So. 2d 1302 (La. 1995) ................................................................................ 28
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ................................................................ 18
Pierce v. Socy of Sisters,
268 U.S. 510 (1925) ............................................................................................ 17
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ............................................................................................ 16
Robicheaux v. Caldwell,
2 F. Supp 3d 910 (E.D. La. 2014) ......................................................................... 3
Romer v. Evans,
517 U.S. 620 (1996) ........................................................................................ 5, 10
Sharp v. Sharp,
470 So. 2d 371 (La. Ct. App. 1985) .................................................................... 14
Smith v. Cole,
553 So. 2d 847 (La. 1989) ............................................................................ 10, 26
Stanley v. Illinois,
405 U.S. 645 (1972) ............................................................................................ 16
Stanton v. Stanton,
421 U.S. 7 (1975) ................................................................................................ 16
State ex rel Dep't of Soc. Servs. v. Howard,
898 So. 2d 443 (La. Ct. App. 2004) .............................................................. 10, 11
(continued)
Page

ix
Succession of Brown,
388 So. 2d 1151 (La. 1980) ................................................................................ 26
Troxel v. Granville,
530 U.S. 57 (2000) .............................................................................................. 17
Turner v. Safley,
482 U.S. 78 (1987) ................................................................................................ 9
United States v. Virginia,
518 U.S. 515 (1996) ............................................................................................ 15
United States v. Windsor,
133 S. Ct. 2675 (2013) .............................................................................. 5, 19, 25
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ............................................................................. 21
Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972) ............................................................................................ 27
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ............................................................................................ 15
Zablocki v. Redhail,
434 U.S. 374 (1978) ............................................................................................ 21
STATUTES, CONSTITUTIONS & RULES
26 U.S.C.A. 6013 .................................................................................................... 8
Fed. R. App. Proc. 29(a) ............................................................................................ 1
29(c)(5) ........................................................................................ 1
La. Const. art. 1, 3 ................................................................................................. 28
art. 12, 15 .............................................................................................. 1
(continued)
Page

x
La. Ch. Code art. 1198 ............................................................................................. 11

La. Civ. Code Ann. art. 86 ......................................................................................... 1
art. 87 ............................................................................. 6, 7, 20
art. 88 ............................................................................. 6, 7, 20
art. 89 ............................................................................ 1, 6, 7, 8
art. 90 ......................................................................... 6, 7, 8, 20
art. 91 ......................................................................... 6, 7, 8, 20
art. 92 ......................................................................... 6, 7, 8, 20
art. 93 ......................................................................... 6, 7, 8, 20
art. 94 ................................................................................. 7, 20
art. 95 ................................................................................. 7, 20
art. 98 ....................................................................................... 8
art. 99 ..................................................................................... 14
art. 102 ................................................................................ 7, 13
art. 103 ................................................................................ 7, 13
art. 103.1 ................................................................................... 7
art. 111 ................................................................................ 8, 13
art. 131 .................................................................................... 14
art. 134 .................................................................................... 14
art. 185 .................................................................................... 10
art. 188 .................................................................................... 11
art. 189 .................................................................................... 11
(continued)
Page

xi
art. 195 .................................................................................... 10
art. 197 .................................................................................... 11
art. 198 .................................................................................... 11
art. 199 .................................................................................... 11
art. 227 .................................................................................... 13
art. 240 .................................................................................... 13
art. 889 ...................................................................................... 8
art. 890 ................................................................................ 8, 13
art. 894 ................................................................................ 8, 13
art. 2315 .................................................................................... 8
art. 2315.1 ................................................................................. 8
La. Civ. Code Ann. art. 2315.2 ................................................................................. 8
art. 2315.5 ................................................................................. 8
art. 2315.6 ................................................................................. 8
art. 2338 .................................................................................... 8
art. 2346 .................................................................................. 12
art. 3520 .................................................................................... 1
La. Evid. Code Ann. art. 504 ..................................................................................... 8
art. 505 ..................................................................................... 8
La. Rev. Stat. Ann. 9:102 ...................................................................................... 13
9:2801 (A)(4)(c) .................................................................... 13
9:307 ....................................................................................... 7
40:1299.53 (A)(4) ................................................................... 8
(continued)
Page

xii
OTHER AUTHORITIES
Andrea Carroll & Robert D. Moreno, Matrimonial Regimes,
16 La. Civ. L. Treatise (3d ed. 2014) .................................................................. 12
Carlos A. Ball, Social Science Studies and the Children of Lesbians and Gay
Men: The Rational Basis Perspective, 21 Wm. & Mary Bill Rts. J. 691
(2013) ............................................................................................................ 17, 18
Gary J. Gates, Same-Sex and Different-Sex Couples in the American
Community Survey: 2005-2011 (Williams Institute, 2013), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/ACS-2013.pdf. ........ 24
Gary J. Gates and Abigail M. Cooke, Louisiana Census Snapshot: 2010
(Williams Institute, 2010) , available at
http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Census2010Snap
shot_Louisiana_v2.pdf, last visited Oct. 22, 2014 ............................................. 24
Kathryn Venturatos Lorio, Children Born Out of Wedlock, Successions and
Donations 3:1, 10 La. Civ. L. Treatise (2d ed. 2013) ..................................... 27
Melissa Murray, Marriage As Punishment, 112 Colum. L. Rev. 1 (2012) ............. 26
Michael L. Eisenberg, M.D. et al., Predictors of not pursuing infertility
treatment after an infertility diagnosis: examination of a prospective U.S.
cohort, 94 Fertility & Sterility No. 6 (2010) ........................................................ 7
P. Keith Daigle, All in the Family: Equal Protection and the Illegitimate
Child in Louisiana Succession Law, 38 La. L. Rev. 189 (1977) ........................ 27
Surrogacy: A Brief U.S. History, 3 Family and Society, Encyclopedia of
Contemporary American Social Issues (Michael Shally-Jensen ed. 2011) ........ 7


1
INTEREST OF AMI CI CURI AE
Pursuant to Federal Rule of Appellate Procedure 29(a),
2
Amici Curiaeall
scholars of family law
3
respectfully submit this brief in support of Plaintiffs-
Appellants.
4
Amici wish to provide the Court with an exposition of Louisiana law
with respect to marriage, filiation,
5
and the well-being of childrenall of which are
central to the issues before the Court.
6

SUMMARY OF ARGUMENT
The Louisiana Constitution and its Civil Code preclude same-sex couples
from entering civil marriage in Louisiana and deny recognition to marriages that
same-sex couples have validly entered elsewhere. See La. Const. art. 1215; La.
Civ. Code Ann. arts. 86, 89, 3520 (collectively, the marriage ban).
Appellees and their amici argued below that the marriage ban furthers state
interests with regard to the well-being of children. As family law scholars, Amici
are committed to promoting the welfare of children and encouraging parents to be

2
See Joint Consent by All Parties to the Filing of Briefs Amicus Curiae, Case No. 14-
31037 (Oct. 7, 2014) ECF No. 00512796204.
3
Amici professors are listed in Appendix A.
4
Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no counsel for any party
authored this brief in whole or in part, and no party or counsel for any party made a monetary
contribution intended to fund the preparation or submission of this brief.
5
Parentage determinations in Louisiana are referred to as filiation proceedings.
6
While Amici agree with Appellants that Louisianas marriage ban should be subject to
heightened scrutiny, the ban is unconstitutional under any standard of review.

2
responsible for their childrens well-being. Amici agree that marriage can benefit
children by providing support and stability to their families. Louisianas marriage
ban, however, does not further child well-being or responsible parenting.
Appellees and their amicis arguments to the contrary lack any basis in history,
law, or logic.
In Louisiana and elsewhere, couples marry for many reasons, including a
desire for public acknowledgment of their mutual commitment to share their lives
with each other through a legally binding union. Appellees and their amici ignore
the multiple purposes of marriage, and suggest that the ability to procreate without
assistance is the raison dtre of marriage. (See Brief of Amici Curiae Robert P.
George, Sherif Girgis, and Ryan T. Anderson in Support of Defendants (George
Br.), 9, Robicheaux v. Caldwell, No. 13-5090-MLCF-ALC (E.D. La. May 12,
2014) ECF No. 96); Brief of Amici Curiae J. Randall Trahan and Katherine Shaw
Spaht on Behalf of Defendants (Trahan Br.), 17, Robicheaux v. Caldwell, No. 13-
5090-MLCF-ALC (E.D. La. May 12, 2014) ECF No. 97.) But Louisiana does not
and never has limited marriage to couples who can or want to have children through
biological procreation. Indeed, it would be constitutionally impermissible to do so.
Second, Appellees amici argue that marriage can be limited to couples who
can provide the ideal environment for raising children, (Brief of Amici Curiae
Social Science Professors in Support of Defendants (Soc. Br.), 21, Robicheaux v.

3
Caldwell, No. 13-5090-MLCF-ALC (E.D. La. May 12, 2014) ECF No. 91), which
they claim are environments with a stable biological mother and father (Soc. Br.
3; see also Brief of Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll
in Support of Defendants (Hawkins Br.), 21, Robicheaux v. Caldwell, No. 13-
5090-MLCF-ALC (E.D. La. May 12, 2014) ECF No. 94) (describing the optimal
mother-father, biological parenting model)). See also Robicheaux v. Caldwell, 2 F.
Supp 3d 910, 919 (E.D. La. 2014) (summarizing defendants argument that
Louisianas same-sex marriage ban serve[s] a central state interest of linking
children to an intact family formed by their biological parents). But the ideal
parenting arguments touted by these and other amici (see, e.g., George Br. 4;
Trahan Br. 13), are unsupported by social science, which overwhelmingly
demonstrates that it is the quality and nature of the parental relationshipnot a
parents gender or biological relationship to the childthat is critical to positive
child adjustment and outcomes.
7
Appellees amicis assertions also conflict with
Louisiana law, which does not view biology as the sole criterion for filiation and
rejects the notion that a parents gender is legally relevant to determinations of
childrens best interests. Further, a desire to impose gender complementarity on
parents, (Soc. Br. 5), offends constitutional principles by basing law on conformity

7
See Amicus Curiae Brief of the American Psychological Association et al. in Support of
Plaintiffs-Appellees, DeLeon v. Perry, No. 14-50196 (5th Cir. Sept. 15, 2014) ECF No.
00512769207.

4
to sex- or gender-based stereotypes. Even if promoting gender-differentiated
parenting, (Soc. Br. 5), were a permissible state interest, Louisianas exclusion of
same-sex couples from civil marriage bears no rational relationship to the decisions
of different-sex couples regarding marriage, procreation, or childrearing.
The marriage ban actually undermines Louisianas interests in childrens
well-being and responsible parenting. The ban does not assist children in any
family, but it does inflict direct and palpable harms on same-sex couples and their
children, who are denied access to hundreds of important state and federal benefits.
In addition, the categorical ban signals that the relationships of same-sex couples
are deemed unequal to the relationships of other couples.
Finally, even if there were any basis for believing that the ban would induce
better behavior and more responsible parenting by different-sex couples, both
Louisiana law and the Supreme Court have foreclosed the punishment of children as
a means to influence adult behavior.
In sum, the purported state interests that Appellees and their amici rely on to
justify disparate treatment of different-sex and same-sex couples do not reflect the
policies that Louisiana law pursues regarding marriage, filiation, and the best
interests of children. As the Supreme Court recently reaffirmed, a desire to mark
same-sex couples as less worthy of respect is an insufficient interest to sustain a

5
law. United States v. Windsor, 133 S. Ct. 2675 (2013).
8
Accordingly, under the
federal Constitution, Appellees claims provide no rational basis for denying same-
sex couples the right to marry.
ARGUMENT
I. PROCREATION IS NOT A NECESSARY ELEMENT OF
MARRIAGE
Appellees argue that excluding same-sex couples from marriage is justified
because [o]nly man-woman couples naturally procreate and the overwhelming
majority of children are born from man-woman unions. (Defendants Opposition
to Plaintiffs Motion for Partial Summary Judgment, 16, Robicheaux v. Caldwell,
No. 13-5090-MLCF-ALC (E.D. La. May 20, 2014) ECF No. 102.) This reductive
difference is then invoked to deny same-sex couples the right to marry. According
to Appellees amici, marriage benefits are conferred on different-sex couples to
encourage naturally procreative couples to produce children in the context of a
stable and enduring union. (Trahan Br. 13.) Thus, they argue, the central purpose
of marriage is to encourage[e] heterosexual fathers to marry the mothers of their
children. (Hawkins Br. 19.)

8
See Romer v. Evans, 517 U.S. 620, 632 (1996) (laws based solely on animus towards
certain classes violate equal protection clause). Animus as used in Romer is a term of art and
does not mean subjective dislike or hostility, but simply an intention to exclude a particular
group from legal protections without a rational reason for doing so.

6
Appellees characterization of marriage is not consistent with Louisianas
law, the laws of other states, or the federal Constitution. An ability or desire to
procreate has never been a requirement of marriage in Louisiana, and, if it were, it
would be unconstitutional. Moreover, Louisiana extends the right to marry to
different-sex couples who are unable to procreate without assistance.
A. The Ability or Desire To Procreate Has Never Been the Defining
Feature of or a Prerequisite for a Valid Marriage
Appellees suggestion that the right to marry is inextricably intertwined with
procreation is wrong. Louisiana, like all other states, has never required prospective
spouses to agree to, or even to be able to, procreate as a condition of marrying. See
La. Civ. Code Ann. arts. 87-93 (other than the different-sex requirement, the
requirements for consenting to and entering marriage are that a person be
unmarried, not be marrying a close relative, and be over the age of eighteen or have
parental consent if between ages of 16 and 18); see also Lawrence v. Texas, 539
U.S. 558, 605 (2003) (Scalia, J., dissenting) ([W]hat justification could there
possibly be for denying the benefits of marriage to homosexual couples . . . ? Surely
not the encouragement of procreation, since the sterile and the elderly are allowed
to marry.). Moreover, because choosing whether or not to engage in procreative
sexual activity is constitutionally protected from state intervention, see, e.g.,
Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965), it would be unconstitutional
to condition marriage on such an ability or desire.

7
In Louisiana, as in other states, infertility (which is a very common
condition)
9
is not a basis for voiding a marriage, nor is consummation or sexual
intimacy of any kind required to validate a marriage. See La. Civ. Code Ann. art.
94-95 (listing null marriages).
A review of Louisianas statutory grounds for divorce reinforces the
conclusion that procreation is not the core purpose of marriage, much less an
essential requirement. To the extent Louisiana retains fault-based grounds for
divorce, these grounds do not includeand have never includedinfertility. See
La. Civ. Code Ann. arts. 102-103.1. Moreover, Louisiana, like all other states,
permits no-fault divorce. La. Civ. Code Ann. art. 102-103.1 (allowing divorce if
the spouses have lived separate and apart for a requisite period of time); La. Rev.
Stat. Ann. 9:307 (allowing divorce from a covenant marriage if the spouses have
lived separate and apart for a requisite period of time).
Similarly, Appellees amicis insistence that marriage exists primarily to
encourage the propagation of the human race, (George Br. 9), gets no support
from Louisiana law. As noted above, couples who are unable to procreate can enter
into a valid marriage in Louisiana. See La. Civ. Code Ann. arts. 87-95.

9
Data from 2002 show that approximately seven million women and four million men
suffer from infertility. Michael L. Eisenberg, M.D. et al., Predictors of not pursuing infertility
treatment after an infertility diagnosis: examination of a prospective U.S. cohort, 94 Fertility &
Sterility No. 6, 2369 (2010). In 1999, approximately two to three million couples were infertile.
Surrogacy: A Brief U.S. History, 3 Family and Society, Encyclopedia of Contemporary
American Social Issues, 1182 (Michael Shally-Jensen ed., 2011).

8
Contrary to Appellees narrow view of marriage, in Louisiana, as in every
other state, marriage serves and has always served multiple purposes, the vast
majority of which do not pertain to children, but to enabling spouses to protect and
foster their personal, intimate, and mutually dependent relationship to one another.
See, e.g., La. Civ. Code Ann. art. 98 (Married persons owe each other fidelity,
support, and assistance.). Married couples enjoy protections and benefits and
assume mutual responsibilities pertaining, for instance, to health care decisions,
property ownership, spousal support, inheritance, taxation, insurance coverage, and
testimonial privileges.
10

In sum, Appellees attempts to reduce the meaning and purpose of marriage
to facilitating and protecting the fruits of procreative sexual activity are not
supported by Louisiana law. As the Supreme Court has explained, it would
demean a married couple were it to be said marriage is simply about the right to
have sexual intercourse. See Lawrence, 539 U.S. at 567.

10
See, e.g., La. Rev. Stat. Ann. 40:1299.53(A)(4) (spousal right to consent to medical
care); La. Civ. Code Ann. arts. 2315, 2315.1, 2315.2, 2315.5, 2315.6 (spousal rights to claim
losses in damages actions); La. Civ. Code Ann. art. 2315.2 (action for wrongful death); La. Civ.
Code Ann. art. 2338 (community property); La. Civ. Code Ann. art. 889 (spousal right to inherit
community property); La. Civ. Code Ann. art. 890, 894 (spousal right to inherit); La. Civ. Code
Ann. art. 111 (spousal right to seek support); 26 U.S.C.A.6013 (spousal right to file joint
federal income taxes); La. Code Evid. Ann. arts. 504, 505 (spousal testimonial privileges).

9
B. The Constitutional Rights To Marry and To Procreate Are
Distinct and Independent
As a matter of constitutional law, the Supreme Court declared in Turner v.
Safley, 482 U.S. 78 (1987), that individuals cannot be excluded from the right to
marry simply because they are unable to engage in procreation. The Turner Court
recognized that incarcerated prisonerseven those with no opportunity to
procreatehave a right to marry, because many important attributes of marriage
remain . . . after taking into account the limitations imposed by prison life. Id. at
95. The Court explained that marriage has multiple purposes unrelated to
procreation, such as the expressions of emotional support and public
commitment, exercise of religious faith, expression of personal dedication,
and the receipt of government benefits. Id. at 95-96.
Appellees attempt to justify the marriage exclusion under the guise of
promoting a particular method of procreation has no support. Procreative decisions
are quintessential matters of individual liberty. See, e.g., Eisenstadt v. Baird,
405 U.S. 438, 453 (1972) ([I]t is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.); Griswold,
381 U.S. at 479, 485-86 (married couples have a constitutionally protected right to
engage in non-procreative sexual intimacy).

10
II. SOCIAL SCIENCE AND STATE AND FEDERAL LAW
CONTRADICT A CLAIMED PREFERENCE FOR GENDER-
DIFFERENTIATED PARENTING
Appellees and their amici argue that it is permissible for Louisiana to limit
marriage to different-sex couples, because families headed by two married
biological parents are able to provide gender-differentiated parenting and
establish the optimal environment in which to raise children. (Soc. Br. 5;
Hawkins Br. 21.)
11
These claims run counter to Louisiana as well as federal law and
social science research.
A. Louisiana Does Not Require a Biological Relationship To
Establish a Legal Parent-Child Relationship
Under Louisiana law, there are many ways to establish a legal parent-child
relationship. A biological or genetic connection to a child is one such means, but
not always a necessary or sufficient one. For example, Louisiana, like all other
states, presumes that a husband is a childs legal parent when the child is born to his
wife during or subsequent to their marriage. La. Civ. Code arts. 185, 195. Proof that
the husband is not the biological father does not necessarily rebut the presumption.
Smith v. Cole, 553 So. 2d 847 (La. 1989) (child is still the legitimate child of the
mothers husband even if another mans biological paternity is proven); State ex rel

11
This effort to justify the exclusion of same-sex couples from marriage by repeating the
States preference for married different-sex parents merely circles back to the challenged
classification without justifying it. Romer, 517 U.S. at 633 (discriminatory classifications must
serve some independent and legitimate legislative end).

11
Dep't of Soc. Servs. v. Howard, 898 So. 2d 443, 444 (La. Ct. App. 2004) (same);
La. Civ. Code Ann. arts. 197, 198.
12
Louisiana permits dual paternity, where both a
husband who is not a biological father and the biological father are recognized as
legal parents, placing the best interests of children above biology. To argue that a
biological connection is preferable in a marriage undermines established Louisiana
law.
Louisiana law also recognizes that a husband is a parent and cannot deny his
parentage if the child was conceived with his consent through donor insemination.
La. Civ. Code Ann. art. 188. In addition, Louisiana, like every other state, allows
adults to adopt children who are not their biological offspring. La. Ch. Code art.
1198. Adoptive parents are treated as equal in all respects to all other legal parents.
La. Civ. Code art. 199.
In sum, the lack of a requirement of a biological tie as a condition for
establishing filiation, and Louisianas support for non-biological filiation in some
instances, render implausible any contention that the marriage ban is based on a
preference for biological parenting.

12
The mothers husband is completely precluded from seeking to disavow his paternity
one year after the childs birth or after he knew or should have known about the childs birth, or
if the spouses have lived apart for more than three hundred days before the birth, one year after
being notified in writing that his paternity has been asserted by an interested party. La. Civ. Code
Ann. art. 189.

12
B. Louisiana Has Eliminated Marriage Laws Based on Gender
Stereotypes
Louisiana law and policy contradict Appellees and their amicis claims that
gender-differentiat[ion] or complementarity in marriage and parenting is an
important state objective. (See, e.g., Soc. Br. 5; Hawkins Br. 14-18.) Their claim
that gender remains a definitional pillar of the social institution of marriage is
outdated. (Hawkins Br. 14.) Instead, as in every other state, marriage under
Louisiana law is a union free of state-mandated, sex- or gender-based distinctions in
spousal roles or the incidents of marriage. Louisianas child custody law also treats
a parents sex or gender as legally irrelevant.
Louisiana has eliminated the sex-specific roles that were once central to
marriage. Within Louisianas longstanding community property system, each
spouse now has the right to management and control over his or her interests in the
community property. La. Civ. Code Ann. art. 2346 (Each spouse acting alone may
manage, control, or dispose of community property unless otherwise provided by
law.); see also Andrea Carroll & Robert D. Moreno, Matrimonial Regimes 5:3,
16 La. Civ. L. Treatise, (3d ed. 2014) (The powers of management formerly
granted to the husband alone are now also granted to the wife. Except as otherwise
provided, [e]ach spouse acting alone may manage, control, or dispose of
community property unless otherwise provided by law. The spouses are equal in
this regard, each sharing identical powers of management.) (internal citation

13
removed). Louisiana has also extended equal rights to spouses to hold and control
their separate property, enter into contracts, and to sue and be sued. See, e.g., La.
Rev. Stat. Ann. 9:102 (Married women may institute or defend suits, or
otherwise appear in judicial proceedings, and stand in judgment, without the
authority of their husbands or of the judge.).
Louisiana has eliminated gender-based distinctions upon divorce or the death
of a spouse. The causes for divorce are the same for each spouse. See La. Civ. Code
Ann. arts. 102, 103. At divorce, Louisiana law requires the court to divide the
community property without regard to gender. La. Rev. Stat. Ann. 9:2801
(A)(4)(c). Louisiana has also rejected the gender-based rule that spousal support
was only paid by the husband to the wifenow either spouse may qualify or be
held liable for support. See La. Civ. Code Ann. art. 111; Orr v. Orr, 440 U.S. 268
(1979) (holding that such rules constitute unconstitutional sex-discrimination);
Lovell v. Lovell, 378 So. 2d 418, 419-20 (La. 1979) (applying Orr v. Orr to
Louisiana law). Similarly, upon death, each spouse has an equal right to the
deceased spouses property. La. Civ. Code Ann. arts. 890, 894.
Parents are both equally obligated, regardless of their gender, to provide care
and support for their children. See La. Civ. Code Ann. art. 227 (Fathers and
mothers, by the very act of marrying, contract together the obligation of supporting,
maintaining, and educating their children.); La. Civ. Code Ann. art. 240 (same for

14
unmarried parents); see also La. Civ. Code Ann. art. 99 (Spouses mutually assume
the moral and material direction of the family, exercise parental authority, and
assume the moral and material obligations resulting therefrom.). Child custody
determinations are based on the best interests of the child, without regard to the
gender of the parents. See La. Civ. Code Ann. art. 131; La. Civ. Code Ann. art. 134
(setting forth factors for court to consider in determining best interests); Sharp v.
Sharp, 470 So. 2d 371, 374 (La. Ct. App. 1985) (finding that allowing the mother to
remain the custodial parent based solely on gender was clear error in violation of
the child custody statute).
As these examples demonstrate, Louisiana law does not inscribe gender-
differentiated roles in marriage or parenting. (Soc. Br. 5.) In fact, Louisiana has
sought to eliminate family law rules based on sex or gender stereotypes.
C. A Desire To Promote Gender-Differentiated Parenting Is a
Constitutionally Impermissible Interest
Beyond its inconsistency with Louisiana law, any effort to enforce gender-
differentiated roles in marriage or parenting would be unconstitutional. In fact,
Appellees amici attempt to justify the marriage ban on this basis: the
complementarity of an intact family, with a mother and a father serving unique
relational roles, is optimal for a childs healthy development. (Soc. Br. 5 (citations
omitted); see also Hawkins Br. 21 (describing the optimal mother-father,
biological parenting model).) But this is precisely the type of overbroad

15
generalization[] about the different talents, capacities, or preferences of males and
females that the Constitution prohibits. United States v. Virginia, 518 U.S. 515,
533 (1996).
The Supreme Court has repeatedly held that it is impermissible to premise
laws, including family laws, on outmoded sex-based stereotypes. See, e.g.,
Califano v. Goldfarb, 430 U.S. 199, 205, 207 (1977) (holding unconstitutional
Social Security Act provisions that were premised on the archaic and overbroad
generalizations that wives in our society frequently are dependent upon their
husbands, while husbands rarely are dependent upon their wives); Weinberger v.
Wiesenfeld, 420 U.S. 636 (1975) (social security benefits); Frontiero v. Richardson,
411 U.S. 677 (1973) (military benefits); Orr, 440 U.S. 268 (holding
unconstitutional a state law imposing support obligations on husbands but not on
wives); Kirchberg v. Feenstra, 450 U.S. 455 (1981) (striking down state law that
gave husbands the unilateral right to dispose of jointly owned community property
without his spouses consent); Nev. Dept of Human Res. v. Hibbs, 538 U.S. 721,
736 (2003) (approving Congresss effort to combat [s]tereotypes about womens
domestic roles [and] parallel stereotypes presuming a lack of domestic
responsibilities for men).
Implied in Appellees amicis arguments is a desire to ensure that children
will be socialized into appropriate gender-roles for their biological sex. (See, e.g.,

16
Soc. Br. 5 (emphasizing distinct roles of fathers and mothers in socialization of the
child) (citation omitted); id. (noting the differences between maternal and
paternal behavior as related to parents biological gender or sex roles)
(quotations and citations omitted).) These alleged interests are suspect under
constitutional principles.
Almost forty years ago, the Supreme Court struck down a state law that
provided different child support obligations for girls than for boys based on
presumptions about their respective roles and destinies. Stanton v. Stanton, 421 U.S.
7, 14-15 (1975) (A child, male or female, is still a child. No longer is the female
destined solely for the home and the rearing of the family, and only the male for the
marketplace and the world of ideas.); see also Stanley v. Illinois, 405 U.S. 645,
653, 661 (1972) (holding unconstitutional a state law that conclusively presumed
that all unmarried fathers were unqualified to raise their children); cf. Price
Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (As for the legal relevance of
sex stereotyping, we are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched the stereotype associated
with their group, for [i]n forbidding employers to discriminate against individuals
because of their sex, Congress intended to strike at the entire spectrum of disparate
treatment of men and women resulting from sex stereotypes.) (quoting
Los Angeles Dept of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978));

17
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (rejecting stereotypes about
how female and male jurors differ); Miss. Univ. for Women v. Hogan, 458 U.S. 718,
729 (1982) (rejecting stereotype that only women should be nurses).
In addition, there are powerful traditionsbolstered by constitutional
decisionsthat protect parental autonomy, including the rights of parents to control
the care and raising of their children, and socialize them as they see fit. See
Pierce v. Socy of Sisters, 268 U.S. 510, 53435 (1925) (parents have a right to
direct the upbringing and education of [their] children); Meyer v. Nebraska, 262
U.S. 390, 399 (1923) (the right to marry, establish a home and bring up children
is a protected liberty); Troxel v. Granville, 530 U.S. 57, 72-73 (2000) ([T]he Due
Process Clause does not permit a State to infringe on the fundamental right of
parents to make childrearing decisions simply because a state judge believes a
better decision could be made.).
D. Social Science Refutes Claims About Child Outcomes Based on
Parents Gender or Sexual Orientation
Appellees amicis argument about optimal childrearing is flatly contradicted
by decades of social science research. In dozens of studies, sociologists and
psychologists have found no significant differences between the long-term
outcomes for children of same-sex parents and the children of different-sex parents.
See Carlos A. Ball, Social Science Studies and the Children of Lesbians and Gay
Men: The Rational Basis Perspective, 21 Wm. & Mary Bill Rts. J. 691, 715-16

18
(2013). These peer-reviewed studies have examined a wide array of factors related
to childrens well-being, including their attachment to parents, emotional
adjustment, school performance, peer relations, cognitive functioning, and self-
esteem. No study has found any differences based on the sexual orientation of
childrens parents. Id. at 716-17. Instead, the key factors correlated with positive
outcomes for children are the quality of the parent-child relationship and the
relationship and resources of the parents. Id. at 733 n.286. In particular, having two
involved parents rather than only onean arrangement that would be supported by
allowing parents to marryis correlated with better outcomes for children,
regardless of the sexual orientation or genders of the parents. Id.; see also Amicus
Curiae Brief of the American Sociological Association in Support of Plaintiffs-
Appellees, DeLeon v. Perry, No. 14-50196 (5th Cir. Sept. 16, 2014) ECF No.
00512769671.
In light of this social science consensus, courts have increasingly rejected the
optimal parenting argument. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d
921, 980 (N.D. Cal. 2010), reinstated in Hollingsworth v. Perry, 133 S. Ct. 2652
(2013) (The 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

19
research supporting this conclusion is accepted beyond serious debate in the field of
developmental psychology.). All of the seventeen or more federal district court
rulings that have struck down state marriage bans since the Supreme Courts 2013
decisions in Windsor, 133 S. Ct. 2675, and Hollingsworth, 133 S. Ct. 2652, have
echoed the Perry courts conclusions. See, e.g., DeBoer v. Snyder, 973 F. Supp. 2d
757, 770 (E.D. Mich. 2014) (noting that over 150 sociological and psychological
studies have repeatedly confirmed that there is no scientific basis to differentiate
between children raised in same-sex versus heterosexual households). The Tenth
and Fourth Circuits have recently affirmed four of these district court rulings and
their conclusions concerning the social science findings. See, e.g., Kitchen v.
Herbert, 755 F.3d 1193, 1225 (10th Cir. 2014) (We cannot embrace the contention
that children raised by opposite-sex parents fare better than children raised by same-
sex parents . . . .), cert. denied, Herbert v. Kitchen, 83 USLW 3189 (U.S. Oct. 6,
2014) (No. 14-124); Bostic v. Schaefer, 760 F.3d 352, 383 (4th Cir. 2014) ([T]he
same factorsincluding family stability, economic resources, and the quality of
parent-child relationshipsare linked to childrens positive development, whether
they are raised by heterosexual, lesbian, or gay parents.) (quoting the Amicus Br.
of the American Psychological Association, et al.), cert. denied, Schaefer v. Bostic,
83 U.S.L.W. 3189 (U.S. Oct. 6, 2014) (No. 14-225).

20
In contrast, to these virtually unanimous findings, Appellees amicis optimal
parenting argument is not grounded in science but in invalid stereotypes about how
men and women parent their children.
E. Marriage Is Open to Virtually Any Different-Sex Couple,
Irrespective of Their Ability To Be Optimal Parents
Even if, arguendo, there were differences in how children fare between those
raised by married heterosexual couples and those raised by cohabiting same-sex
couples, it is not permissible to rely on any such differences as justification for
singling out same-sex couples and excluding them from the right to marry. No other
couples are denied the right to marry based on a belief that they will not provide an
optimal setting for the raising of children. To obtain a marriage license under
Louisiana law, couples do not have to prove their ability to have children, raise
them in any particular family structure, or achieve specific state-endorsed outcomes
for their children. See La. Civ. Code Ann. arts. 87-93; Kitchen, 755 F.3d at 1224-25
(The state does not restrict the right to marry or its recognition of marriage based
on compliance with any set of parenting roles, or even parenting quality.). Parental
resources are associated with better outcomes for children, but no one would
suggest that lower- or middle-income people should be barred from marrying. The
complete bar on marriage for all same-sex couples [makes] no sense in light of
how [Louisiana] treat[s] other groups similarly situated in relevant respects. Bd. of

21
Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4 (2001) (citing City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 447-50 (1985)).
The Supreme Court has also recognized that whether members of a couple
would be good parents, or whether they could even provide support for children, are
not permissible bases upon which to deny them the right to marry. In Zablocki v.
Redhail, 434 U.S. 374 (1978), Wisconsin sought to deny marriage licenses to
parents the state considered irresponsible because they had failed to pay child
support, but the Court held that conditioning marriage on a persons parenting
behavior was an unconstitutional infringement of the right to marry. Id. at 386, 388-
89. In this vein, courts have rejected the optimal child-rearing theory in part
because marriage is not and cannot be restricted to individuals who would be
good parents. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 900 (Iowa 2009)
(noting that Iowa did not exclude from marriage other groups of parentssuch as
child abusers, sexual predators, parents neglecting to provide child support, and
violent felonsthat are undeniably less than optimal parents).
In sum, a desire to promote optimal parenting cannot justify banning same-
sex couples from marriage.
III. LOUISIANAS MARRIAGE BAN BEARS NO RATIONAL
RELATIONSHIP TO THE WELL-BEING OF CHILDREN
There is no rational or logical connection between Louisianas marriage ban
and any of the purported interests identified by Appellees and their amici. It is

22
utterly implausible to believe that barring recognition of married same-sex couples
and their children improves the well-being of children raised by different-sex
couples. The ban does, however, cause clear and direct harm to the children of
same-sex parents.
A. The Marriage Ban Does Nothing To Further the Well-being of
Children Raised by Different-Sex Couples
Appellees amici claim that Louisiana has an interest in encouraging the
propagation of the human race by channeling naturally procreative heterosexual
activity into marriage. (George Br. 9; see also Trahan Br. 17; Hawkins Br. 19.)
Allegedly, the State also seeks to promot[e] what is known to be an ideal
environment for raising children. (See, e.g., Soc. Br. 21; Hawkins Br. 21.)
Insofar as marriage laws may encourage different-sex couples to marry, there
is no basis in logic or social experience to suppose that such couples will lose
respect for the institution if same-sex couples are permitted to marry in Louisiana.
Likewise, there is no logical reason to believe that permitting same-sex couples to
marry would have any influence on the marital or procreative decisions of
different-sex couples, much less cause these couples to care less about their
children, suffer a decline in fertility, or have more extramarital affairs. These
suppositions, which are central to amicis arguments, (see, e.g., George Br. 15-19;
Hawkins Br. 1-2, 6-8), make sense only if same-sex relationships are so abhorrent

23
as to contaminate the institution of marriage to the point that different-sex couples
will shun it.
Courts have rejected this very argument, because there is no logical
connection between the means and the purported end. See, e.g., Kitchen, 755 F.3d at
1223 ([I]t is wholly illogical to believe that state recognition of the love and
commitment between same-sex couples will alter the most intimate and personal
decisions of opposite-sex couples.); De Leon v. Perry, 975 F. Supp. 2d 632, 655
(W.D. Tex. 2014) ([T]he Court finds the argument that allowing same-sex couples
to marry will undermine procreation is nothing more than an unsupported
overbroad generalization that cannot be a basis for upholding discriminatory
legislation.); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1145 (D. Or. 2014)
(Opposite-gender couples will continue to choose to have children responsibly or
not, and those considerations are not impacted in any way by whether same-gender
couples are allowed to marry.).
Appellees attempt to justify barring committed same-sex couples from
marriage, stigmatizing them and their children, and denying them access to
substantial state and federal benefits, on the imaginary basis that this will make
marriage more attractive to different-sex couples.

24
B. The Marriage Ban Harms the Well-being of Children Raised by
Same-Sex Couples
Although there is not even a rational reason to think that the marriage ban
will have any positive effect on the children of different-sex couples, it is certain to
harm the children of same-sex couples by denying their families access to hundreds
of critical state and federal benefits that are conducive to providing stable and
secure environments for raising children.
13
Appellees make the callous suggestion
that because the overwhelming majority of children are born to different-sex
couples, (Defendants Opposition to Plaintiffs Motion for Partial Summary
Judgment, 16-17, Robicheaux v. Caldwell, No. 13-5090-MLCF-ALC (E.D. La.
May 20, 2014) ECF No. 102), the State may exclude other childrens families from
marriage and thereby deny them the multiple benefits of being recognized as the
legal children of both their parents. As the District Court striking down Idahos
marriage ban properly determined, [i]n this most glaring regard, [the marriage
bans] fail to advance the States interest because they withhold legal, financial, and
social benefits from the very group they purportedly protectchildren. Latta v.

13
As of 2011, about one in five same-sex couples were raising children under age 18.
Gary J. Gates, Same-Sex and Different-Sex Couples in the American Community Survey: 2005-
2011 (Williams Institute, 2013) at 1, available at http://williamsinstitute.law.ucla.edu/wp-
content/uploads/ACS-2013.pdf. In 2010, there were 8,076 same-sex couples in Louisiana, with
over 1,600 of them raising children. Gary J. Gates and Abigail M. Cooke, Louisiana Census
Snapshot: 2010 (Williams Institute, 2010) at 3, available at http://williamsinstitute.law.ucla.edu/
wp-content/uploads/Census2010Snapshot_Louisiana_v2.pdf, last visited Oct. 22, 2014.

25
Otter, No. 1:13-cv-00482, 2014 WL 1909999, at *24 (D. Idaho May 13, 2014),
affd Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014).
The marriage ban also amounts to an official statement that the family
relationship of same-sex couples is not of comparable stature or equal dignity to
that of married couples. In re Marriage Cases, 183 P.3d 384, 445, 452 (Cal. 2008).
This stigma leads children to understand that the State considers their gay and
lesbian parents to be unworthy of participating in the institution of marriage and
devalues their families compared to families that are headed by married
heterosexuals. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 963 (Mass.
2003).
Excluding same-sex couples from marriage and all of its attendant legal
protections because they allegedly do not provide a certain kind of parenting, when
different sex couples are not required to have children at allmuch less biological
childrenimposes significant burdens on same-sex couples and their children. A
desire to mark the relationships and parenting abilities of same-sex couples as less
worthy of respect is an impermissible interest, under any standard of constitutional
review. Windsor, 133 S. Ct. at 2695-96.
In these ways, the marriage ban does significant tangible and intangible harm
to the children of same-sex couples.

26
C. Denying Rights and Protections to Children Is a Constitutionally
Impermissible Means of Influencing Their Parents Behavior
Even if there were a reasonably conceivable connection between the
marriage ban and increasing the marriage rates of heterosexual couples or the
number of children born to married heterosexual couples, punishing innocent
children is an impermissible means of trying to influence the behavior of adults.
Louisianas marriage ban functions in a way that is remarkably similar to the
manner by which children born out-of-wedlock were denied legal and economic
protections and stigmatized under now-repudiated laws in Louisiana and most other
states regarding illegitimate children. Succession of Brown, 388 So. 2d 1151,
1152 (La. 1980) (declaring unconstitutional Louisiana law that denied rights of
inheritance to acknowledged illegitimates). Historically, state parentage laws
saddled the children of unwed parents with the demeaning status of illegitimacy
and denied these children important rights in an effort to shame their parents into
marrying one another. See Melissa Murray, Marriage As Punishment, 112 Colum.
L. Rev. 1, 33 n.165 (2012) (marriage was offered as a way to lead unwed mothers
away from vice towards the path of virtue). Rights that were denied to
illegitimate children included the right to a relationship with and support from
their fathers, intestate succession, and compensation for wrongful death or injury to
their fathers. Louisiana generally subjected out-of-wedlock children to the same
harsh treatment they endured in other states. See, e.g., Smith v. Cole, 553 So. 2d at

27
849 (describing Louisianas historically harsh treatment of illegitimate children);
P. Keith Daigle, All in the Family: Equal Protection and the Illegitimate Child in
Louisiana Succession Law, 38 La. L. Rev. 189, 189-92 (1977); Kathryn Venturatos
Lorio, Children Born Out of Wedlock, Successions and Donations 3:1, 10 La. Civ.
L. Treatise, (2d ed. 2013) (discussing the reform of the inheritance system to
provide illegitimate children in Louisiana more inheritance rights).
Since the late 1960s, however, the Supreme Court has repudiated laws that
discriminate against children based on outmoded concepts of illegitimacy. In
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972), for example, the Court found
that
imposing disabilities on the illegitimate child is contrary to the basic
concept of our system that legal burdens should bear some
relationship to individual responsibility or wrongdoing. Obviously, no
child is responsible for his birth and penalizing the illegitimate child is
an ineffectualas well as an unjustway of deterring the parent.
Id. at 175; see also Levy v. Louisiana, 391 U.S. 68, 71 (1968) (Louisiana courts
denial of illegitimate childs right to recover in wrongful death is unconstitutional
because a state cannot draw a line which constitutes an invidious discrimination
against a particular class); Gomez v. Perez, 409 U.S. 535, 538 (1973) (per curiam).
Consistent with this directive, Louisiana now recognizes that children of
unmarried parents are entitled to the same rights as children born to married
parents. The Louisiana Constitution requires that [n]o law shall arbitrarily,

28
capriciously, or unreasonably discriminate against a person because of birth. La.
Const. art. 1, 3; Pace v. State ex rel La. State Emps. Ret. Sys.,
648 So. 2d 1302, 1305 (La. 1995) (A law that treats illegitimate children less
favorably than legitimate ones discriminates between them because of birth and is
unconstitutional unless the state carries its burden of showing that the classification
substantially furthers a legitimate state purpose.).
Louisiana law does not support the proposition that it is permissible to deny
critical benefits and security to some children in order to make the families of other
children more stable or secure. Accordingly, Appellees amicis argument that
Louisianas marriage ban can be justified as an effort to encourage responsible,
biological, gender-differentiated parenting by making marriage exclusively
available to heterosexuals is fundamentally at odds with Louisianas strong policy
of equal treatment for all children.
In exchange for the marriage bans wholly speculative benefit for the
children of heterosexual couples, other childrenthose raised by same-sex
couplespay the price. This is a legally unacceptable result.

29
CONCLUSION
For the foregoing reasons, Amici ask that this Court reverse the district
courts decision.

Dated: October 24, 2014 Respectfully submitted,

MORRISON & FOERSTER LLP
By: s/ Sara Bartel
Sara Bartel
425 Market Street
Tel: (415) 268-6000
Fax: (415) 268-7522

A-1

Jamie R. Abrams
Assistant Professor of Law
Louis D. Brandeis School of Law
University of Louisville

Kerry Abrams
Albert Clark Tate, Jr. Professor of
Law
University of Virginia School of Law

Marianne Blair
Professor of Law
University of Tulsa College of Law

Christopher Blakesley
Barrick Distinguished Scholar &
Cobeaga Law Firm Professor of Law
University of Nevada Las Vegas
Boyd School of Law

Grace Ganz Blumberg
Distinguished Professor of Law,
Emerita
UCLA School of Law

Cynthia Grant Bowman
Dorothea S. Clarke Professor of Law
Cornell Law School

Kathryn Webb Bradley
Professor of the Practice of Law
Director of Legal Ethics
Duke Law School

Penelope Bryan
Dean and Professor of Law
Whittier Law School

Mary Patricia Byrn
Associate Dean and Professor of Law
William Mitchell College of Law

Naomi Cahn
Harold H. Greene Professor of Law
GWU Law School

Patricia A. Cain
Professor of Law
Santa Clara University
Aliber Family Chair in Law Emerita
University of Iowa

Anne C. Dailey
Evangeline Starr Professor of Law
University of Connecticut
School of Law

Nancy E. Dowd
David H. Levin Chair in Family Law
Director, Center on Children &
Families Professor of Law
University of Florida Levin College
of Law

Dr. Jennifer A. Drobac
Professor of Law
Indiana University
Robert H. McKinney School of Law

14
University affiliations of the professors are given for identification
purposes only, and imply no endorsement by the universities.
APPENDIX A
14


A-2

Donald N. Duquette
Clinical Professor of Law
Director, National Quality
Improvement Center on the
Representation of Children in the
Child Welfare System
University of Michigan Law School

Ira Mark Ellman
Charles J. Merriam Distinguished
Professor of Law and
Affiliate Professor of Psychology
Arizona State University
Sandra Day O'Connor College of Law

Linda Henry Elrod
Richard S. Righter Distinguished
Professor of Law
Director, Washburn Law School
Children and Family Law Center
Washburn University School of Law

Martha M. Ertman
Carole & Hanan Sibel Research
Professor
University of Maryland
Francis King Carey Law School

Katherine Hunt Federle
Professor of Law
Director, Center for Interdisciplinary
Law and Policy Studies
Michael E. Moritz College of Law

Zanita E. Fenton
Professor of Law
University of Miami School of Law

Martha Albertson Fineman
Robert W. Woodruff Professor
Director of the Feminism and Legal
Theory Project and the
Vulnerability and the Human
Condition Initiative
Emory University School of Law

Louise Graham
Robert G. Lawson and William H.
Fortune Professor of Law
University of Kentucky College of
Law

Amy E. Halbrook
Assistant Professor of Law
Director, NKU Chase Children's Law
Center Clinic
Chase College of Law
Northern Kentucky University

Vivian E. Hamilton
Professor of Law
William and Mary School of Law

Leslie J. Harris
Dorothy Kliks Fones Professor
School of Law
University of Oregon

Jennifer Hendricks
Associate Professor
University of Colorado Law School

Michael J. Higdon
Director of Legal Writing and
Associate Professor of Law
University of Tennessee College of
Law


A-3

Joan Heifetz Hollinger
John and Elizabeth Boalt Lecturer in
Residence,
University of California, Berkeley
School of Law

Lisa C. Ikemoto
Professor of Law
Martin Luther King, Jr. Research
Scholar
University of California, Davis
School of Law

Melanie B. Jacobs
Associate Dean for Graduate and
International Programs
Professor of Law
Michigan State University College of
Law

Courtney G. Joslin
Professor of Law
University of California, Davis
School of Law

Herma Hill Kay
Barbara Nachtrieb Armstrong
Professor of Law
School of Law

Laura T. Kessler
Professor of Law
S.J. Quinney College of Law
University of Utah

Kay P. Kindred
Sara and Ralph Denton Professor of
Law
William S. Boyd School of Law
University of Nevada, Las Vegas

Kristine S. Knaplund
Professor of Law
Pepperdine University School of Law

Anbal Rosario Lebrn
Visiting Assistant Professor
Louis D. Brandeis School of Law
University of Louisville

Elizabeth L. MacDowell
Director, Family Justice Clinic
William S. Boyd School of Law,
UNLV

Maya Manian
Professor of Law
University of San Francisco
School of Law

Inga Markovits
The Friends of Joe Jamail Regents
Chair
University of Texas School of Law

Nancy G. Maxwell
Professor of Law
Washburn University School of Law


A-4

Jennifer B. Mertus
Professor of Legal Writing
Director, Center for Children's Rights
Director, China Study Abroad
Program
Whittier Law School

Melissa Murray
Professor of Law

Douglas NeJaime
Professor of Law
UC Irvine School of Law

Angela Onwuachi-Willig
Charles M. and Marion J. Kierscht
Professor of Law
University of Iowa College of Law

Laura Oren
Professor Emerita
University of Houston Law Center

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law
School

Laura A. Rosenbury
Professor of Law
John S. Lehmann Research Professor
Washington University School of
Law

Clifford Rosky
Professor of Law
S.J. Quinney College of Law
University of Utah

Suelyn Scarnecchia
University of Michigan Law School

Rebecca L. Scharf
William S. Boyd School of Law
University of Nevada, Las Vegas

Julie Shapiro
Professor of Law
Faculty Fellow, Fred T. Korematsu
Center for Law and Equality
Seattle University School of Law

Jana Singer
Professor of Law
University of Maryland
Frances King Carey School of Law

Mark Strasser
Trustees Professor of Law
Capital University Law School

Frank Vandervort
Child Advocacy Law Clinic
Juvenile Justice Law Clinic
University of Michigan Law

Michael S. Wald
Jackson Eli Reynolds Professor of
Law, Emeritus
Stanford Law School

Monica Hof Wallace
Dean Marcel Garsaud, Jr.
Distinguished Professor of Law
Loyola University New Orleans
College of Law

A-5

D. Kelly Weisberg
Professor of Law
Hastings College of the Law
San Francisco, CA

Lois A. Weithorn
Professor of Law
UC Hastings College of the Law

Verna L. Williams
Judge Joseph P. Kinneary Professor
of Law
Co-Director, Center for Race, Gender,
and Social Justice
University of Cincinnati College of
Law

Wendy W. Williams
Professor Emerita
Georgetown University Law Center


No. 14-31037

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

CERTIFICATE OF SERVICE
I certify that on October 24, 2014 the foregoing document was
filed electronically with the Clerk of Court for the United States Court of Appeals
for the Fifth Circuit through the CM/ECF system. I certify that service will be
accomplished by the CM/ECF system for all counsel of record.

Dated: October 24, 2014

s/ Sara Bartel
Sara Bartel



CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of FED. R. APP. P.
32(a)(7)(B) because:
this brief contains 6,653 words, excluding the parts of the
brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii), or
this brief uses a monospaced typeface and contains
lines of text, excluding the 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
Microsoft Word 2010 in 14 point Times New Roman font with
footnotes in 12 point Times New Roman font , or
this brief has been prepared in a monospaced typeface using
with .

Dated: October 24, 2014

s/ Sara Bartel
Sara Bartel
425 Market Street
Tel: (415) 268-6000
Fax: (415) 268-7522


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