Mass - DOMA - Appeals #5523930

Case: 10-2204 Document: 00116167078 Page: 1 ALSO filed in Cases 10-2207, 10-2214
Date Filed: 02/04/2011
Entry ID: 5523930
Nos. 10-2204, 10-2207, and 10-2214 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants-Appellants. _____________________________________________________________________ DEAN HARA, Plaintiff-Appellee/Cross-Appellant, NANCY GILL, et al., Plaintiffs-Appellees, KEITH TONEY; ALBERT TONEY, III, Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants/Cross-Appellees, HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State, Defendant. Appeals from the United States District Court for the District of Massachusetts Civil Case Nos. 1:09-cv-11156-JLT, 1:09-cv-10309-JLT (Hon. Joseph L. Tauro) Brief Amicus Curiae of Agudath Israel of America. In Support of Defendants-Appellants and in Support of Reversal
Case: 10-2204 Document: 00116167078 Page: 2
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Russell D. Raskin* RASKIN & BERMAN 116 East Manning Street Providence, RI 02906 (401) 421 1363 x 19
Abba Cohen AGUDATH ISRAEL OF AMERICA 1730 Rhode Island Avenue Washington, D.C. 20036 202-835-0414 --and-Mordechai Biser AGUDATH ISRAEL OF AMERICA 42 Broadway New York, NY 10004 (212) 797-9000
* Counsel of Record
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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned counsel of record identifies the following corporate information with respect to amicus curiae: Agudath Israel or America is a nonprofit corporation that has no parent corporation and issues no stock. /s/ Russell D. Raskin Russell D. Raskin Counsel for the Amicus Curiae February 4, 2011
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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ....................................................... iii TABLE OF AUTHORITIES .....................................................................................v STATEMENT OF INTEREST OF AMICUS CURIAE ..........................................1 I. INTRODUCTION .................................................................................................3 II. ARGUMENT ........................................................................................................5 A. LAWS THAT REFLECT AND PROMOTE STANDARDS OF MORALITY CONSTITUTE A RATIONAL BASIS, AND EVEN A COMPELLING GOVERNMENTAL INTEREST ...5 B. GOVERNMENTS INTEREST IN PROMOTING PROCREATION AND THE RAISING OF WELL-ADJUSTED CHILDREN IS A RATIONAL BASIS FOR DOMA 19 III. CONCLUSION ..................................................................................................30 CERTIFICATE OF COMPLIANCE .......................................................................32 CERTIFICATE OF SERVICE ...33
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TABLE OF AUTHORITIES Cases Page
1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d 319 (Ala. 2010) ...12 Andersen v. King County, 158 Wash. 2d 1, 37, 138 P.3d 963, 983 (2006) ...21 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .6 Bowers v. Hardwick, 478 U.S. 186 (1986) ..7 Carey v. Population Services, Int'l, 431 U.S. 678 (1977) ..10 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ...........11 Dean v. District of Columbia, 653 A.2d 307 (D.C.App. 1995) ................14 F.C.C. v. Beach Commcns, Inc., 508 U.S. 307 (1993) .........28 Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) ..3 Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941(2003) ..21 Heller v. Doe, 509 U.S. 312 (1993) .......10 Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (2006) ......8
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Hoke v. United States, 227 U.S. 308 (1913) .....6 Lawrence v. Texas, 539 U.S. 558 (2003) .....5 Lofton v. Sec'y of Dept. of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) 9 Loving v. Virginia, 388 U.S. 1 (1967) ...............24 Massachusetts v. U.S. Dept. of Health & Human Servs., 698 F. Supp. 2d 234 (D. Mass. 2010) .....3 Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) ...14
Maynard v. Hill, 125 U.S. 190 (1888) ....14 Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) .......6 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ....10 Potter v. Murray City, 760 F.2d 1065 (10th Cir.) ..15 Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008) .....12 Roe v. Wade, 410 U.S. 113 (1973) ........10 Romer v. Evans, 517 U.S. 620 (1996) 10 Roth v. United States, 354 U.S. 476 (1957) .... 6 Skinner v. Oklahoma, 316 U.S. 535 (1942) ....24
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United States v. Stagliano, 693 F. Supp. 2d 25 (D.D.C. 2010) ..10 Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007) ........11
Zablocki v. Redhail, 434 U.S. 374 (1978) .....14 Other Authorities Babylonian Talmud, Tractate Sanhedrin, 58a ........23 D. BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM 25 (1995) ...27 Defense of Marriage Act of 1996: Hearing on S. 1740 Before the Senate Judiciary Comm., 104th Cong. (1996) (statement of David Zwiebel, General Counsel, Agudath Israel of America) .1 Genesis, 2:24 .....23 H. Elaine Rodney & Robert Mupier, Behavioral Differences between African American Male Adolescents with Biological Fathers and Those Without Biological Fathers in the Home, 30 J. Black Stud. 45, 53 (1999) ..26 John P. Hoffmann & Robert A. Johnson, A National Portrait of Family Structure and Adolescent Drug Use, 60 J. Marriage & Fam. 633 (1998) .27 Lynne Marie Kohm, The Homosexual Union: Should Gay and Lesbian Partnerships be Granted the Same Status as Marriage?, 22 J. Contemp. L. 51, 61 & nn. 53, 54 (1996) ....25
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Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 Cal. L. Rev. 521 (1989) ...17 Michael W. McConnell, The Role of Democratic Politics in Transforming Moral Convictions Into Law, 98 Yale L.J. 1201 (1989) ...17 PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 10, 13 (Oxford U. P. 1965) 17 Roland J.Chilton & Gerald E. Markle, Family Disruption, Delinquent Conduct and the Effect of Subclassification, 37 Am. Soc. Rev. 93, 95 (1972) ......27 Romania Eyes Legalizing Consensual Incest, Wouldn't Be First Country in Europe, Fox News, Mar. 21, 2009 http://www.foxnews.com/story/0,2933,510016,00.html, (last visited Jan. 17, 2011) ..18
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INTEREST OF THE AMICUS CURIAE1 Amicus curiae Agudath Israel of America, founded in 1922, is a national grassroots Orthodox Jewish organization with constituents all across the United States, including Massachusetts. Our involvement in protecting the valuable institution of traditional marriage through DOMA dates back to the Senate Judiciary Committee hearings on the then proposed DOMA bill. At the hearings, we testified that [l]legalizing same-sex marriages . . . would obscure further the vital link between marriage and children . . . [and] convey the messages that childbearing and childrearing are matters entirely distinct from marriage. Defense of Marriage Act of 1996: Hearing on S. 1740 Before the Senate Judiciary Comm., 104th Cong. (1996) (statement of David
Pursuant to Fed. R. App. P. 29(c)(5): (A) No partys counsel authored this brief in whole or in part; (B) no party or partys counsel contributed money that was intended to fund preparing or submitting this brief; (C) no person - other than the amicus curiae, its members or its counsel- contributed money that was intended to fund preparing or submitting this brief.
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Zwiebel, General Counsel, Agudath Israel of America). The decision of the court below ignores this telling consideration. Further, we are deeply concerned about the potential far-reaching consequences of a decision that refuses to assign any weight to traditional notions of morality in determining the constitutional validity of legislation. As discussed more fully in our arguments that follow, the possible ramifications of such a ruling extend far beyond the current same-sex marriage debate; it would affect the legal underpinnings of many, if not all, similar moralitybased laws. We view such prospect with considerable alarm. Accordingly, while this case raises a number of other important issues as well, our focus as amicus curiae will be primarily on the narrow, but fundamental, issue of the constitutionally proper role of public morality in the legislative process of lawmaking.
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I INTRODUCTION The district court asserted two constitutional bases for striking down the Defense of Marriage Act (DOMA): equal protection Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 377 (D. Mass. 2010) and federalism restrictions Massachusetts v. U.S. Dept. of Health & Human Servs., 698 F. Supp. 2d 234, 238 (D. Mass. 2010). In the equal protection analysis, the court held that there was no possible rational basis to distinguish between a marriage encompassing the rich diversity of both genders and a marriage consisting of a duplicate of the same gender. In other words, the traditional notion of marriage, biblically referenced and accepted almost universally by modern society throughout history, is, according to the court, totally devoid of any rationale. We respectfully urge this court to eschew such a radical interpretation of our common history. Section A of this brief provides clear and continuous judicial precedent to the notion that societys long-held moral traditions constitute a rational basis on which to enact legislation. It also emphasizes the broader stakes that are affected
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by the courts ruling on this issue. Section B shows why marriage consisting of a man and a woman is critical to the procreation and healthy upbringing of children, and is thus not an irrational basis for Congresss definition of marriage. We have received consent from all parties to file this brief.
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II ARGUMENT
A. LAWS THAT REFLECT AND PROMOTE STANDARDS OF MORALITY CONSTITUTE A RATIONAL BASIS, AND EVEN A COMPELLING GOVERNMENTAL INTEREST In its equal protection analysis of DOMA, the district court could not fathom a single fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate government objective. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 387 (D. Mass. 2010) (internal quotations and citations omitted). The court held that the objective of defending traditional notions of morality was not a sufficiently rational reason to sustain a law passed by the majority of Congress. Id. at 389. This holding was based on the courts cursory reading of Lawrence v. Texas, 539 U.S. 558, 577 (2003), statement that 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 . . . . However, a careful review of Lawrence, and the case law that preceded and succeeded that decision,
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clearly shows that morality considerations remain a legitimate rational basis for government enactment of laws--especially marriage-related laws. The Supreme Court has long held that [t]here is unquestionably a control in the states over the morals of their citizens . . . . Hoke v. United States, 227 U.S. 308, 321 (1913) (upholding federal laws against prostitution and finding that the powers reserved to the states and those conferred on the nation are . . . to promote the general welfare, material and moral) (emphasis added). The Court accepted that a legislature could legitimately act on such a conclusion to protect the social interest in order and morality. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973) (quoting Roth v. United States, 354 U.S. 476, 485 (1957)) (upholding indecency laws against a First Amendment challenge). The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (upholding indecency statute against a First Amendment challenge where the statute's purpose of protecting societal order and morality is clear from its text and history.) (emphasis added).
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Legislation based on moral grounds is also sufficient to protect a statute from equal protections violations. The Court so held in Bowers v. Hardwick, 478 U.S. 186, 196 (1986) and was not overruled in this respect by Lawrence v. Texas, 539 U.S. 558 (2003). In Bowers, the Court explicitly held that a belief by the majority of the electorate that homosexual behavior was immoral was adequate rationale to support a rational basis for a statute outlawing homosexual acts. Bowers, 478 U.S. at 196 (The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.) . Although the Court later overruled Bowers in Lawrence, the above holding of Bowers was not overruled, and remains binding law. Lawrence overruled Bowers and held that the state could not justify the criminalization of homosexual acts solely based on moral grounds. Lawrence 539 U.S. at 571 (The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.); id. at 577 (morality
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concerns are not a sufficient reason for upholding a law prohibiting the practice. ) (emphasis added). But Lawrence did not hold that moral considerations must be totally disregarded in determining state-sanctioned social ideals. Lawrences holding was confined to whether moral considerations are sufficient grounds for the state to prohibit certain acts using criminal law; it did not hold that moral considerations have no relevance in the milieu of considerations a legislature may consider in crafting law. Indeed, Lawrence itself clearly differentiated between laws making private sexual conduct a crime, and laws giving formal recognition to any relationship that homosexual persons seek to enter. Lawrence, 539 U.S. at 578 (emphasis added); See also, Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1, 18 (2006) (Graffeo, J. concurring): The right affirmed by the Supreme Court in Lawrence is not comparable to the new right to marry plaintiffs assert here, nor is the Texas statute criminalizing homosexual sodomy analogous to the marriage statutes under review. The Domestic Relations Law is not a penal provision and New York has not attempted to regulate plaintiffs' private sexual conduct or disturb the sanctity of their homes.
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(upholding New Yorks marriage laws to opposite-sex couples); Lofton v. Sec'y of Dept. of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) (distinguishing between criminal prohibitions and statutory recognitions) (The relevant state action is not criminal prohibition, but grant of a statutory privilege. And the asserted liberty interest is not the negative right to engage in private conduct without facing criminal sanctions, but the affirmative right to receive official and public recognition.). Laws that prohibit private conduct, such as those in Lawrence, are subject to a higher level of scrutiny than laws that merely confer an official recognition of a valuable social entity, such as DOMA. The reason for the different treatment is that laws prohibiting private conduct impinge on the Due Process right to liberty, see Lawrence, 539 U.S. at 578 (Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.), while laws that confer privileges do not restrict a persons Due Process liberty interests, and thus, need only conform to equal protections
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standards of rational basis.2 It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (internal citations omitted.); see also, United States v. Stagliano, 693 F. Supp. 2d 25, 38 (D.D.C. 2010) (Although public morality may be an insufficient justification for regulating private conduct in some cases, it is certainly a sufficient justification for regulating the sort of public conduct at issue here.) (holding that government's interest in morality is a sufficient justification for regulating the public dissemination of obscenity.).
Liberty rights may only be limited if there is a compelling state interest, and th[e] legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Roe v. Wade, 410 U.S. 113, 155 (1973) (internal citations and quotations omitted.); see also Carey v. Population Services, Int'l, 431 U.S. 678, 688-89 (1977). Equal protection rights, on the other hand, will pass constitutional muster as long as the law neither burdens a fundamental right nor targets a suspect class and bears a rational relation to some legitimate end Romer v. Evans, 517 U.S. 620, 631, (1996); see also, e.g., Heller v. Doe, 509 U.S. 312, 319-320 (1993).
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Thus, the fact that Lawrence found morality to be an insufficient reason to uphold criminal sodomy laws in a Due Process liberty analysis does not mean that morality considerations are cast aside in an equal protection context. This Court has previously confirmed that the Lawrence Court explicitly declined to base its ruling on equal protection principles, even though that issue was presented. Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (holding that the Dont Ask, Dont Tell Act did not violate equal protection principles). Many other courts have also affirmed the continuing vitality of moral considerations in rational basis review, even post-Lawrence. The Eleventh Circuit, in Williams v. Morgan, 478 F.3d 1316, 1318 (11th Cir. 2007), considered whether public morality remains a sufficient rational basis for [a] challenged statute after the Supreme Courts decision in Lawrence. The case involved a legislative ban against the sale of certain sexual devices. After an extensive analysis the court held that: We do not read Lawrence, the overruling of Bowers, . . . to have rendered public morality altogether illegitimate as a rational basis. The principle that [t]he law ... is constantly based on notions of morality,
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Bowers, 478 U.S. at 196, was not announced for the first time in Bowers and remains in force today. As we noted in Williams IV, the Supreme Court has affirmed on repeated occasions that laws can be based on moral judgments. Id. The court declined to accept the abandonment of morality in our legislative system because [o]ne would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence if now such a traditional and significant jurisprudential principal has been jettisoned wholesale . . . . Id. (internal citations omitted.)3 The Supreme Court of Alabama in 1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d 319, 345 (Ala. 2010) also held that post Lawrence, public morality can still serve as a legitimate rational basis for regulating laws that are
Although the Fifth Circuit in Reliable Consultants, Inc. v. Earle, 517 F.3d 738, (5th Cir. 2008) disagreed with the Eleventh Circuit and held that a ban on certain sexual devices could not be sustained based on morality interests, that holding does not affect the analysis of the case at hand. Reliable Consultants dealt with a law prohibiting a privacy right under Due Process analysis, id. at 746 (. . . our analysis is on the burden the statute puts on the individuals right to make private decisions about consensual intimate conduct), while this case concerns no such right, but rather, the statutory grant of public recognition of a moral institution. Just as Lawrence was confined to a state prohibition of a liberty interest, the same is true of Reliable Consultants.
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not a private activity. See also id. at 341( to the extent that Lawrence rejected public morality as a legitimate governmental interest, it invalidated only those laws that involved both private and noncommercial activity.) Not only do morality interests satisfy a rational basis review, they are also a substantial governmental interest in protecting order and morality. Barnes, 501 U.S. at 569 (cited by Lofton v. Sec'y of Dept. of Children & Family Servs., 358 F.3d 804, 827 (11th Cir. 2004)) (emphasis added). In Lofton, a post Lawrence case, the Eleventh Circuit Court of Appeals noted that the States interest in morality is sufficiently substantial to satisfy the governments burden under the more rigorous intermediate level of constitutional scrutiny applicable in some cases. Id. at 819, n.17. (emphasis added). Further, specifically regarding the states authority to regulate marriage, it has been recognized that the governments interest in preserving social morality is so great as to be compelling. As a result, statutes that restrict the right of individuals to marry whom they please have consistently been upheld by the courts despite the fact that, as the Court has recognized on numerous occasions (e.g.,
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Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 314, (1976)), the right to marry is a fundamental right, and statutes that interfere with that right are subject to the strictest scrutiny. The foundation for state regulation of marriage was established in Maynard v. Hill, 125 U.S. 190, 205 (1888): Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. (emphasis added). This insight led Justice Powell, concurring in Zablocki v. Redhail, 434 U.S. 374, 399 (1978), to acknowledge that [t]he State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people. In other words, even though marriage is a fundamental right, states may impinge upon this right to marry by prohibiting marriage between certain categories of people based on nothing more than morality concerns alone. Judge Ferrens concurring/dissenting opinion in Dean v. District of Columbia, 653 A.2d
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307 (D.C.App. 1995), makes the point well. Citing as an example the District of Columbias law against a mans marrying his sons wife or a woman marrying her stepfather, Judge Ferren (in a section of his opinion joined by the two other members of the D.C. Court of Appeals panel) pinpointed social morality as a selfsufficient basis for consanguinity laws that prohibit marriages among certain relatives even though their unions pose no dangers of biological inbreeding. The consanguinity provision . . . reflects taboos indeed moral judgments about improper marriage relationships that transcend genetic concerns. Dean, 653 A.2d at 313. The governments interest in promoting marriage laws that reflect and promote social morality is so strong that it even trumps a claim to marriage enhanced by a free exercise claim. Thus, in Potter v. Murray City, 760 F.2d 1065 (10th Cir.), cert. denied 474 U.S. 849 (1985), at issue was the First Amendment free exercise claim of a practitioner of plural marriage who challenged Utahs prohibition against polygamy. The Tenth Circuit duly noted that only a compelling state interest could overcome the free exercise claim, Potter, 760 F.2d at 1068-69;
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and that Utah had presented no empirical evidence that monogamy is superior to polygamy. Id. at 1069. The court nonetheless rejected the First Amendment claim: Monogamy is inextricably woven into the fabric of our society. It is the bedrock upon which our culture is built. In light of these fundamental values, the State is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship. Id. at 1070 (citation omitted; emphasis added). What is so compelling about the right of government to legislate in these areas? The answer was well articulated by the English jurist Lord Patrick Devlin. Commenting generally on the role of morality in a societys laws, Devlin emphasized the enormous interests at stake: If men and women try to create a society in which there is no fundamental agreement about good and evil, they will fail if, having based on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society, and mankind, which needs society, must pay its price.
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PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 10, 13 (Oxford U. P. 1965); See generally, Michael W. McConnell, The Role of Democratic Politics in Transforming Moral Convictions Into Law, 98 Yale L.J. 1201 (1989); Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 Cal. L. Rev. 521 (1989). It is clear from the foregoing analysis that the district court erred in its holding that morality is no longer a rational basis for upholding a law. We respectfully urge this court to overrule the district courts holding and restore the virtue of morality to the law of the First Circuit by, at the very least, affirming that traditional moral norms are not irrational and do serve a legitimate governmental interest. The narrow issue before the Court is whether Congress may enact laws defining marriage between a man and a woman. But, the broader issue is whether states may enact any law that reflects and is designed to promote broadly held views of public morality. That is because it will be difficult, if the Court devalues the constitutional weight to be accorded the moral underpinnings of the law, to
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limit the logic of any such ruling to the specific context of same-sex marriage; it will inevitably be extended to require the state recognition all other morallyrenounced relationships. This genie, once let out of the bottle, will not easily be constrained. Consider the (for now) universally accepted prohibition of incestuous marriages. With what appears to be a new international trend regarding attitudes towards incestuous relationships,4 and without a morality-based reason for withholding official recognition from incestuous couples, this court will be hard pressed to sustain its constitutionality. A similar attack can be made against the states refusal to recognize polygamous marriages. To hold DOMAs moral underpinnings unconstitutional on the grounds that it oversteps the constitutional limits of legislative power would be to invite legal
See e.g., Romania Eyes Legalizing Consensual Incest, Wouldn't Be First Country in Europe, Fox News, Mar. 21, 2009 http://www.foxnews.com/story/0,2933,510016,00.html, (last visited Jan. 17, 2011) (Three European Union nations France, Spain and Portugal do not prosecute consenting adults for incest, and Romania is considering following suit.).
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challenges against any, if not all, similar laws whose underpinnings are moralitybased. Let those who oppose such laws convince legislative bodies that the moral consensus once thought to underlie the laws no longer exists much as they have by now convinced the majority of state legislatures in the country to repeal their anti-sodomy statutes. But, the courts should not solve the problem by judicially depriving those legislatures of the ability to pass legislation in the area of morality generally, and sexual morality specifically, altogether.
B. GOVERNMENTS INTEREST IN PROMOTING PROCREATION AND THE RAISING OF WELL-ADJUSTED CHILDREN IS A RATIONAL BASIS FOR DOMA The district court readily dispose[d] of the rational relationship that traditional marriage - consisting of a male and a female - bears to conceiving and raising healthy children. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 388 (D. Mass. 2010). The court noted that the government attorneys, whose job it is to defend their clients Congressional statutes, had disavowed Congress stated
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justification for the statute of encouraging responsible procreation and childbearing. Id. In abandoning this core basis of marriage, the defendants and the court have blindly ignored common sense, voluminous scholarly research, and ample judicial precedent. This section will explain why preserving the marital institution as a unity of a man and a woman fulfills the important governmental interest in helping to ensure that children are raised in the most optimal family environment. The commonly raised argument why procreation cannot be a basis for marriage is because society has always endorsed marriage even in cases where spouses are incapable of conceiving children. See e.g., Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting) (what 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.). The above argument confuses the reason for the institution of marriage with the reason for an individual marriage; they are two distinct issues. While an
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individual may choose to get married i.e. utilize the institution of marriage- for any number of reasons, the reason for the existence of the institution of marriage has only one primary reason raising normal, well-adjusted children. For example, a person may choose to marry purely for tax reasons, but that does not mean that marriage was created as a means of saving taxes. Similarly, the fact that individuals may marry without being able to achieve the primary objective of marriage does not change the purpose of marriage itself. See also, Andersen v. King County, 158 Wash. 2d 1, 37, 138 P.3d 963, 983 (2006) (The fact[] that all opposite-sex couples do not have children . . . do[es] not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or underinclusiveness does not defeat finding a rational basis.). The institution of marriage is greater than the sum of individual married couples. Marriage, besides for providing practical benefits to individual couples under its union, also provides an important societal and educational function. It signals societys judgment of a social institution that . . . best normalizes, stabilizes, and links the acts of procreation and child rearing. Goodridge v. Dep't
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of Pub. Health, 440 Mass. 309, 391, 798 N.E.2d 941, 1001-02 (2003) (Cordy, J. dissenting). That the objective reason for marriage is procreation does not necessarily mean that the result of every marriage must meet that objective. The objective of marriage raising normal, well-adjusted children - can still be achieved even if the result of an individual marriage does not achieve the stated objective. The broader societal function of marriage is not affected by allowing individuals incapable of procreating to marry. But, the institution of marriage will be gravely affected by changing its definition to include a union that abandons the core element of marriage - the aspiration to create offspring and a raise a family. So long as marriage is limited to opposite-sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes. If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken view that civil marriage has little to do with procreation: just as the potential of procreation would not be necessary for a
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marriage to be valid, marriage would not be necessary for optimal procreation and child rearing to occur. In essence, the Legislature could conclude that the consequence of such a policy shift would be a diminution in society's ability to steer the acts of procreation and child rearing into their most optimal setting. Id. There are many reasons why society, represented by the legislature, could rationally conclude that traditional marriage is the optimum setting in which to manage procreation and the resultant child rearing. Id. 440 Mass. at 392, 798 N.E.2d at 1003, n. 34. First, as a biblical and historic reason: the first time the Bible introduces the concept of marriage, it also describes its purpose procreation. Genesis, 2:24 states: . . . a man shall leave his father and his mother and cling to his wife and they shall become one flesh. The Talmud the preeminent authoritative Jewish commentary on the Bible, written more than two thousand years ago explains the phrase to become one flesh to refer to a creating a child - something that encompasses the man and the woman in one flesh. Tractate Sanhedrin, 58a. Thus, the annotated verse states that a man shall marry his wife to create a child. Notwithstanding the religious view of marriage,
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from a solely historic perspective of the Bible, it is evident that the primary purpose of marriage is to create offspring. The Supreme Court has continuously confirmed that marriage is inextricably linked to childbearing. Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. Andersen, 158 Wash. 2d 1, 138 P.3d 963, 978 (2006) (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) ([m]arriage and procreation are fundamental to the very existence and survival of the race.); Loving v. Virginia, 388 U.S. 1, 12 (1967) ([m]arriage is one of the basic civil rights of man, fundamental to our very existence and survival); Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. . .); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage is the foundation of the family and of society, without which there would be neither civilization nor progress)).
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A child, once created by a man and a woman, requires the continued input of both its mother and father. As a matter of pure logic, it would follow that just as both male and female input are needed to create a child, male and female input are also required to raise a child in the most optimal fashion. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. Hernandez v. Robles, 7 N.Y.3d 338, 359, 855 N.E.2d 1, 7 (2006); see also, Goodridge, 440 Mass. at 381, 798 N.E.2d at 995 ( the institution of marriage has . . . brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized.). Allowing same-sex marriage will undermine the norm of dual-gender parenting and will deprive children of the crucial necessity of male and female input. Empirical scholarly research has also shown that opposite-sex couples are best suited to raise children, and statistics continue to show that the most stable family for children to grow up in is that consisting of a father and a mother. Lynne Marie Kohm, The Homosexual Union: Should Gay and Lesbian
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Partnerships be Granted the Same Status as Marriage?, 22 J. Contemp. L. 51, 61 & nn. 53, 54 (1996) (cited by Goodridge, 440 Mass. at 395, 798 N.E.2d at 1005 (2003)). Same-sex couples, on the other hand, necessarily will be lacking either a father or mother, and will, therefore, deprive the child of a crucial parental figure.5 Andersen, 158 Wash. 2d at 82, 138 P.3d at 1006. The Supreme Court of Washington found that that [s]tudies summarized in the record before one trial court demonstrated that an absent father is associated with quantifiable deficits in children at every stage of the lifecycle, persisting not only in the adulthood of the child, but even into the next generation.).6 Id. Based on these and other similar
Although there are many children that are raised by single parents, that does not mean that that state has endorsed single parenthood as an optimal setting in which to raise children or views it as the equivalent of being raised by both of one's biological parents. Goodridge, 440 Mass. at 390, 798 N.E.2d at 1001. That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support. Id. 440 Mass. at 389, 798 N.E.2d at 1001.
6
The assessment summarized: With respect to fatherlessness, quantifiable deficits occur in literally every area of development-social, psychological, intellectual, educational, emotional, relational, medical, even with respect to longevity, as well as with respect to sexuality, likelihood of cigarette use, drug and alcohol abuse, age
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studies, it cannot be irrational to conclude that promoting mixed-gender marriages best averts these problems. Although some contradictory studies have shown opposite results hailing the virtues of same-sex couples parenting, this does not affect a rational basis analysis. As long as there were some reasonable factual studies on which to base of onset of sexual activity and likelihood of teen or earlier pregnancy. Andersen, 158 Wash. 2d at 87, 138 P.3d at 1008, n. 43. (internal citations omitted); see also Goodridge, 440 Mass. at 386 n. 23, 798 N.E.2d 941 (Cordy, J., dissenting) ( citing [H. Elaine] Rodney [ & Robert Mupier], Behavioral Differences between African American Male Adolescents with Biological Fathers and Those Without Biological Fathers in the Home, 30 J. Black Stud. 45, 53 (1999) (African-American juveniles who lived with their biological fathers displayed fewer behavioral problems than those whose biological fathers were absent from home); [Roland J.] Chilton [ & Gerald E. Markle], Family Disruption, Delinquent Conduct and the Effect of Subclassification, 37 Am. Soc. Rev. 93, 95 (1972) (proportion of youth charged with juvenile offenses who were not living in husband-wife family was larger than comparable proportion of youth charged with juvenile offenses who were living in husband-wife family); [John P.] Hoffmann [ & Robert A. Johnson], A National Portrait of Family Structure and Adolescent Drug Use, 60 J. Marriage & Fam. 633 (1998) (children from households with both mother and father reported relatively low use of drugs, whereas children from households without their natural mothers and from other family type households had highest prevalence of drug use); D. BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM 25 (1995)).
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DOMA, the district court should have upheld its constitutionality, even if the court disagreed with the studies. See Heller v. Doe, 509 U.S. 312, 333 (1993) (It could be that the assumptions underlying these rationales are erroneous, but the very fact that they are arguable is sufficient, on rational-basis review, to immunize the legislative choice from constitutional challenge.) In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. F.C.C. v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993) (emphasis added). The district court, by rejecting the aforementioned reasons for marriage, held that there is not even a reasonably conceivable argument that children would fare better with a mother and a father than with two mothers or two fathers. Such a bold assertion not only ignores legitimate arguments contrary to the courts preferred ideology, but also grossly exceeds the bounds of judicial review. A decision on how best to raise children and structure societybased on voluminous
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empirical studies, historical success rates, and public opinionis solely within the power of the democratically elected legislature. The districts courts foray into an exclusively legislative decision flagrantly violated federal separation of powers principles. We urge this Court to restore the clearly established bounds of judicial review and give deference to Congress stated decision to encourag[e] responsible procreation and child-bearing. Such an objective is rationally achieved by assuring that every federally recognized marriage consists of a male and a female to provide an optimum setting to raise offspring.
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III CONCLUSION
For the above mentioned reasons, amicus curiae Agudath Israel of America respectfully urges that this case not be used to withdraw morality-based matters from community concern. The decision below should be overruled.
RESPECTFULLY RE-SUBMITTED this 2nd day of February, 2011.
/s/Russell D. Raskin Russell D. Raskin* RASKIN & BERMAN 116 East Manning Street Providence, RI 02906 (401) 421 1363 x 19
Abba Cohen AGUDATH ISRAEL OF AMERICA 1730 Rhode Island Avenue Washington, D.C. 20036 202-835-0414 --and--
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Mordechai Biser AGUDATH ISRAEL OF AMERICA 42 Broadway New York, NY 10004 (212) 797-9000 * Counsel of Record Attorneys for Amicus Curiae
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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Fed. R. App. P. 32(a)(7)(C), the attached Brief of Amici Curiae has been produced using the proportional font 14-point Times New Roman. I also certify that this brief contains 5, 489 words, as calculated by Microsoft Word 2007, in compliance with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B).
/s/ Russell D. Raskin Russell D. Raskin Counsel for Amicus Curiae February 2, 2011
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CERTIFICATE OF SERVICE I hereby certify that on February 4, 2011, I electronically re-filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the First Circuit by using the appellate CM/ECF system. I further certify that all participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ Russell D. Raskin
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Case: 10-2204 Document: 00116167078 Page: 1 ALSO filed in Cases 10-2207, 10-2214

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