14-5003 5006 amicus brief of david boyle

8/12/2019 14-5003 5006 Amicus Brief of David Boyle

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Nos. 14-5003 and 14-5006

_________________________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

_________________________________________

MARY BISHOP, et al., PLAINTIFFS-APPELLEES,

and

SUSAN G. BARTON, et al., PLAINTIFFS-APPELLEES/CROSS-

APPELLANTS,

v.

SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County,State of Oklahoma, DEFENDANT-APPELLANT/CROSS-APPELLEE,

and

UNITED STATES OF AMERICA, ex. rel. ERIC H. HOLDER, JR., in his official

capacity as Attorney General of the United States of America, DEFENDANT,

---------------------

BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OFREPRESENTATIVES, et al., INTERVENORS-DEFENDANTS.

____________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF OKLAHOMA, CASE NO. 04-CV-848-TCK-TLW

(HONORABLE TERENCE C. KERN)___________________________________________

BRIEF OF AMICUS CURIAE DAVID BOYLE SUPPORTING

DEFENDANT-APPELLANT AND SUPPORTING REVERSAL

___________________________________________

David Boyle

P.O. Box 15143Long Beach, CA 90815

(734) [email protected]

Pro se Counsel for Amicus Curiae David Boyle

Appellate Case: 14-5003 Document: 01019211281 Date Filed: 03/03/2014 Page: 1Appellate Case: 14-5003 Document: 01019211337 Date Filed: 03/03/2014 Page: 1

ocket Reference Number: [10154108]


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TABLE OF CONTENTS

TABLE OF AUTHORITIES....iv

PRIOR OR RELATED APPEALSviii

STATEMENT OF INTEREST OF AMICUS CURIAE...........1

SUMMARY OF ARGUMENT.1

ARGUMENT. ...3

I. CLARENCE THOMAS VERSUS MILDRED LOVING ON

INTERRACIAL MARRIAGE VIS--VISGAY MARRIAGE......................4

II. BISEXUAL AND SEXUAL-ORIENTATION-FLUID PERSONS MAY

CHOOSE TO MARRY OPPOSITE-SEX PARTNERS, AND HAVE

OFTEN HISTORICALLY DONE SO, WHEN GAY MARRIAGE IS

UNVAILABLE; THEREFORE, A GAY-MARRIAGE BAN IS

RATIONAL, AND MEANINGFULLY PRODUCTIVE OF DIVERSE-

GENDER MARRIAGES...6

A. Human Sexual Fluidity Comprises Many Bisexual or Sexual-

Orientation-Fluid Americans Who Could Choose either Sex-

Segregated or Diverse-Gender Marriage............................6

B. A Revelatory Law-Review Article about Gay-Marriage Bans

Channeling of People into Diverse-Gender Marriages.................10

C. The Successful Heterosexual Marriages of Some Gay Mormons:



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Further Proof that Gay-Marriage Bans Are Effective..14

D. The Defeat of the Lower Courts Argumentsfor the Ineffectiveness of

a Gay-Marriage Ban, by the Arguments Above..16

III. THE FAILURE OF THE UNDERINCLUSIVENESS ARGUMENT

AGAINST SQ 711...17

IV. GRUTTER AND CHILDRENS BENEFIT FROM THE DIVERSE-

GENDER PARENTAGE INTO WHICH SQ 711 USHERS SEXUALLY-

FLUID PEOPLE; AND SQ 711S SOCIALLY-BENEFICIAL, LIFE-

AFFIRMING EXPRESSIVE CONTENT RE CASEYAND CARHART19

V. A SEX-DISCRIMINATION CLAIM IS NOT VIABLE............................24

VI. A SEXUAL-ORIENTATION-DISCRIMINATION CLAIM IS NOT

VIABLE; AND, UPHOLDING SQ 711 WOULD NOT PRECLUDE THIS

COURT FROM INTERVENING IN ALLEGED EMPLOYMENT, OR

OTHER, DISCRIMINATION AGAINST GAYS......................................26

VII. NOT ALL THOSE RAISED BY SAME-SEX PARTNERS BELIEVE

SAME-SEX MARRIAGE IS GOOD FOR CHILDREN...29

VIII. THE WISDOM OF THE OKLAHOMAN PEOPLE ON SQ 711 MAY

COMPRISE MORE THAN MIDWESTERN PREJUDICE.30

(ANTECONCLUSION) ..31

CONCLUSION...32



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CERTIFICATE OF COMPLIANCE AND WORD COUNT.33

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY

REDACTIONS33

CERTIFICATE OF SERVICE34



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TABLE OF AUTHORITIES

CASES

Ballard v. United States, 329 U.S. 187 (1946)23

Bishop et al. v. Smith et al., Nos. 14-5003 and 14-5006 (No. 04-CV-848-TCK-

TLW, 2014 U.S. Dist. LEXIS 4374 (N.D. Okla. Jan. 17, 2014)).passim

Bostic v. Rainey, No. 2:13cv395, 2014 U.S. Dist. LEXIS 19080 (E.D. Va. Feb. 14,

2014).1 & n.2, 4

Brown v. Bd. of Educ., 347 U.S. 483 (1954)...26

Cabell v. Chavez-Salido, 454 U.S. 432 (1982)28

Gonzales v. Carhart, 550 U.S. 124 (2007)19, 20, 21, 29

Grutter v. Bollinger, 539 U.S. 306 (2003).19, 22, 23, 31

Kitchen et al. v. Herbert et al., No. 13-4178 (No. 2:13-cv-217, 2013 U.S. Dist.

LEXIS 179331 (D. Utah Dec. 20, 2013)).....1, 13

Lawrence v. Texas, 539 U.S. 558 (2003).21

Loving v. Virginia(388 U.S. 1, 1967)...1, 2, 4, 5

Planned Parenthood of Se. Pa. v. Casey, 505 U.S 833 (2003)...19, 20, 21

United States v. Windsor, 133 S. Ct. 2675 (2013).5

STATUTES OR BALLOT PROPOSITIONS

Hyde Amend., Pub. L. 94-439, tit. II, 209, 90 Stat. 1434 (1976; amended



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2009)...21 & n.7

Ariz. Senate Bill 1062 (SB 1062) (2014).........27

Okla. State Question No. 711 (SQ 711) (2004)passim

RULES

Fed. R. App. P. 29...1 n.1

OTHER AUTHORITIES

August: Osage County(directed by John Wells; Smokehouse Pictures/The

Weinstein Company 2013 (based on the 2007 play by Tracy

Letts)...............................................................................................30 & n.13, 31

Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from

Bisexuality, 49 San Diego L. Rev. 415 (2012)..passim

Br. of Amicus Curiae David Boyle Supporting Appellants and Supporting Reversal

(Feb. 10, 2014) inKitchen et al. v. Herbert et al., No. 13-4178 (No. 2:13-cv-

217, 2013 U.S. Dist. LEXIS 179331 (D. Utah Dec. 20, 2013)).1

Br. of Pls.-Appellees Derek Kitchen, et al. (Feb. 25, 2014) inKitchen et al. v.

Herbert et al., No. 13-4178 (No. 2:13-cv-217, 2013 U.S. Dist. LEXIS 179331

(D. Utah Dec. 20, 2013))..13

Kelly Faircloth, The ACLU Kicks Up a Fuss About Sex-Segregated Middle School



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Classes, Jezebel, January 24, 2014, 3:15 p.m.,http://jezebel.com/the-aclu-

kicks-up-a-fuss-about-sex-segregated-middle-sc-1506578292 (last visited

March 3, 2014, as with all other Internet links herein)..25 & n.8

Merle Haggard, Okie from Muskogee(Capitol Records 1969).30 & n.12, 31

Robert Oscar Lopez, Not all children raised by gay parents support gay marriage:

I should know, Im one of them, LifeSiteNews.com, June 3, 2013, 3:35 p.m.,

http://www.lifesitenews.com/news/not-all-children-raised-by-gay-parents-

support-gay-marriage-i-should-know-i/.29 & n.10, 30

Carrie A. Moore, Gay LDS men detail challenges: 3 who are married give some

insights to therapist group, Deseret News, Mar. 30, 2007, 12:22 a.m., http://

www.deseretnews.com/article/660207378/Gay-LDS-men-detail-challenges

.html..14, 15 & n.5

Numbers12:1.............................4

Oklahoma!, Richard Rodgers and Oscar Hammerstein II (1943).30 & n.11, 31

Will Oremus,Here Are All the Different Genders You Can Be on Facebook, Slate,

Feb. 13, 2014, 3:03 p.m., http://www.slate.com/blogs/future_tense/2014/02/13

/facebook_custom_gender_options_here_are_all_56_custom_options.

html.31, 32 & n.14

Wikipedia,Bisexuality, http://en.wikipedia.org/wiki/Bisexuality (as of Feb. 19,

2014, at 23:15 GMT).........passim



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Wikipedia,Ireen Wst, http://en.wikipedia.org/wiki/Ireen_W%C3%BCst (as of

Feb. 23, 2014, at11:04 GMT).27 & n.9

Wikipedia,Mixed-orientation marriage, http://en.wikipedia.org/wiki/Mixed-

orientation_marriage (as of Feb. 15, 2014, at 02:18 GMT)...17 & n.6

Wiktionary,yestergay, http://en.wiktionary.org/wiki/yestergay (as of June 17,

2013, at 18:59 GMT)..14 & n.4



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PRIOR OR RELATED APPEALS

Bishop v. Oklahoma, No. 06-5188, 333 F. Appx 361 (10th Cir. June 5,

2009) is a prior appeal of a collateral order in the pending case challenging

the constitutionality of Oklahomas constitutional amendment defining marriage as

the union of one man and one woman. Plaintiffs originally named two state

defendants, the Oklahoma Governor and Attorney General, as parties. Counsel for

the state defendants filed a motion to dismiss on Eleventh Amendment immunity

grounds. The United States District Court for the Northern District of Oklahoma

denied that motion, and the state defendants appealed that decision to this Court

under the collateral-order exception to 28 U.S.C. 1291. This Court held that

because the state officials generalized duty to enforce state law . . .[was]

insufficient to subject them to a suit challenging a constitutional amendment

they have no specific duty to enforce, Plaintiffs lack[ed] Article III standing to

bring their claims against those officers.Bishop, 333 F. Appx at 365. Following

remand, Plaintiffs filed an amended complaint naming Appellant Sally Howe

Smith, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma,

as a defendant in place of the two previously named state officials.



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Kitchen v. Herbert, No. 13-4178, also pending in this Court, involves a

constitutional challenge to the State of Utahs definition of marriage as comprising

only the union between one man and one woman.

Also, in the United States Court of Appeals for the Ninth Circuit, there is a

pending appeal, Sevcik v. Sandoval, No. 12-17668, addressing the constitutionality

of the State of Nevadas definition of marriage.



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STATEMENT OF INTEREST OF AMICUS CURIAE

The present amicus curiae, David Boyle (hereinafter, Amicus),1is

respectfully filing this Brief in Support of Defendant-Appellant, Sally Howe

Smith, inBishop et al. v. Smith et al., Nos. 14-5003 and 14-5006 (No. 04-CV-848-

TCK-TLW, 2014 U.S. Dist. LEXIS 4374 (N.D. Okla. Jan. 17, 2014)). Amicus has

multiple interests in this case, including his submission of an amicus brief in this

cases sister case,Kitchen et al. v. Herbert et al., No. 13-4178 (No. 2:13-cv-217,

2013 U.S. Dist. LEXIS 179331 (D. Utah Dec. 20, 2013). Rather than repeat all the

arguments in that brief, he shall largely focus on new ones.

SUMMARY OF ARGUMENT

The recent Virginia decision2striking down the Peoples will on same-sex

(gay)marriage is in error. One error is takingLoving v. Virginia(388 U.S. 1,

1967) as reason to mandate gay marriage. However, Justice Clarence Thomas and

other members of interracial marriages may disagree with this tenuous rationale.

If a court seeks a rational nexus between a ban on gay marriage and the

promotion of diverse-gender marriage that benefits children: one such nexus is the

1No party or its counsel wrote or helped write this brief, or gave money to itswriting or submission,seeFed. R. App. P. 29. All parties have filed blanket

permission with the Court for amici to write briefs.2Bostic v. Rainey, No. 2:13cv395, 2014 U.S. Dist. LEXIS 19080 (E.D. Va. Feb.14, 2014).



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reality that many Americans are bisexual or sexually fluid, as the gay community

has long admitted in private (with terms like hasbians, yestergays, or lesbians

until graduation), if not necessarily in court challenges to gay-marriage bans.

Thus, a substantial number of Americans who might otherwise have chosen

homosexual marriage, would tend to choose heterosexual marriage, if the former

type of marriage is unavailable. This is not mere speculation but follows a long

history of sexually-fluid or -flexible people entering heterosexual marriages. And

this defeats the lower courts assertion of the ineffectiveness ofa gay-marriage ban

in achieving its goals.

A gay-marriage ban is not underinclusive, even if it does not also prohibit

other sterile people from marrying.

Even if it were underinclusive re fertility, a ban still fulfills the task of steering

people into gender-diverse marriages, so that it lets any children, including adopted

ones, benefit from that. Also, it serves as an expressive message affirming diversity

and procreation, and government may send such messages.

It is problematic to claim that banning gay marriage is sex discrimination, when

a purpose of gay marriage is to establish a sex-segregated environment. (By

contrast,Loving v. Virginiawas about desegregation.)



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Also, there is not a sexual-orientation discrimination problem, since issues such

as employment discrimination against gays are different from gay marriage. For

example, a homosexual man may be a talented football player, but still be unable

to give birth or perform functions that only women can. Thus, the Court using

rational basis to judge State Question No. 711 (2004) (SQ 711) does not prevent

later possibly using heightened scrutiny on other sexual-orientation-related issues.

However, rational basis with a bite against pure animus may be enough to

protect gaysrights at businesses or workplaces.

Some children of same-sex parents found their experience badly damaging,

despite what some social scientists claim about the wholesomeness of gay

marriage.

The people of Oklahoma have often been portrayed as traditionalist, wholesome

folk by media productions; alternatively, some stereotypes of Oklahomans portray

them as backward, bigoted Midwesterners. However, tradition and religion are not

just ignorance; they may accumulate thousands of years of secular wisdom, albeit

distilled into a non-secular form. Perhaps Oklahomans common sense about issues

such as fertility and gender complementarity, and SQ 711, should not be dismissed

out of hand.

ARGUMENT



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I. CLARENCE THOMAS VERSUS MILDRED LOVING ON

INTERRACIAL MARRIAGE VIS--VISGAY MARRIAGE

First, Amicus shall briefly address the recent Virginia decision,Bostic,supraat

1 n.2, ending that states gay-marriage ban: an opinion beginning,see id.at *3-*4,

with a quote from Mildred Loving (RIP), the eponymous subject ofLoving v.

Virginia. Loving, who as per her name, seemed to be a loving and goodhearted

soul, equates the struggle for gay marriage with her own struggle against the

illegality of interracial marriage. The judge inBosticuses this idea,see id.passim,

as a justification for supporting gay marriage in the Old Dominion.

However, this well-intentioned idea lacks logical foundation. Interracial

marriages have been going on at least as far back as Moses marrying an Ethiopian

wife,see Numbers12:1. Thus, it was the bans on interracial marriage, hateful and

bigoted bans, that were themselves an innovation. And an ugly innovation at

that, thankfully overturned byLoving,supra. By contrast, apart from some possible

isolated cases in Rome or elsewhere, gay marriage has essentially never existed

anywhere until recently, even if informal gay relationships have existed since

ancient Greece or before. It is a new creation, and one which Oklahomans and

others do not support.



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Moreover, every same-sex marriage, by the very title same-sex, establishes a

sex-segregated environment. (With all that implies for the denial of a diverse

upbringing for any children.) This is obvious, even if not many have pointed it out.

Since the point ofLovingwas largely to de-segregate,see id., it is very strange for

the State to bless a segregated, zero-diversity arrangement like a gay marriage,

without the people of Oklahoma at least being allowed to weigh in on it by

referendum. (Gay-marriage proponents may claim that the lack of gay marriage is

itself a kind of segregation; but a polygamist, or other sexual minority, could

argue the exact same thing for his own way of life.)

Additionally, while one appreciates Mrs. Lovings good intentions, does

everyone in an interracial marriage support her ideas on non-intersexual, i.e., same-

sex, marriage? How about Justice Clarence Thomas of the U.S. Supreme Court?

He, too, is in an interracial marriage and would presumably supportLoving; but

that does not mean he supports gay marriage,see, e.g., United States v. Windsor,

133 S. Ct. 2675, 2697 (2013), where he joins the dissent against forcing the federal

government to recognize gay marriages approved by states.

Respectfully speaking, Clarence Thomas may know the law even better than

Mildred Loving. And the Court should take Thomas ideas seriously.

In fact, given that serious racial desegregation has happened only in recent

decades: technically, gay marriage may actuallyslow down racial integration,



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even if only slightly. This is because many people who might enter a heterosexual

marriage, which is now, in 2014, more likely to be a racially-diverse one

producing racially-diverse childrenthan an average heterosexual marriage before

1967, would tend to enter a gay marriage insteadproducing no children

whatsoever, if gay marriage were available. (It is not for nothing that gay

marriage is viewed as a largely white institution.) This is because many Americans

could easily choose either a diverse-sex or a sex-segregated marriage, as our next

section explores.

II. BISEXUAL AND SEXUAL-ORIENTATION-FLUID PERSONS MAY

CHOOSE TO MARRY OPPOSITE-SEX PARTNERS, AND HAVE OFTEN

HISTORICALLY DONE SO, WHEN GAY MARRIAGE IS UNVAILABLE;

THEREFORE, A GAY-MARRIAGE BAN IS RATIONAL, AND

MEANINGFULLY PRODUCTIVE OF DIVERSE-GENDER MARRIAGES

A. Human Sexual Fluidity Comprises Many Bisexual or Sexual-Orientation-

Fluid Americans Who Could Choose either Sex-Segregated or Diverse-

Gender Marriage

One of the intellectual tragedies of the gay-marriage debate is that gay-marriage

proponents have been largely silent about issues concerning which one might have

expected they would be more expert, and truthful, than others: namely, the issue of



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widespread sexual fluidity in human beings. As gay-marriage proponents tend to

present things, there are basically two groups: heterosexuals and homosexuals.

Thus, according to this false dichotomy, this narrowly binary model, a gay-

marriage ban might not rationally have any beneficial effect, since all the

heterosexuals would not be affected by it, nor would the homosexuals suddenly

develop a desire to enter a heterosexual marriage. Thus, the argument goes, a gay-

marriage ban is not only meaningless but mean: an illegal, cancerous instantiation

of animus and hatred.

However, the binary modelsuprais outdated and reductive. Indeed, there is a

rainbow of human sexual preference: traditional two-person heterosexual

relationships; multi-person heterosexual relationships (polygamy or polyandry);

homosexuality; asexuality; and bisexuality, among others. The last of those,

bisexuality, shows that a gay-marriage ban may have some beneficial effect after

all, if one sees fertile, two-person gender-diverse marriages as beneficial. (Few

religions or social traditions do not see them as beneficial.) And there are many

bisexuals in America.

According to the Wikipedia articleBisexuality,

3

studies show figures ranging

from 1.5 to 5 percent of Americans being bisexuals,see id.There may be even

3http://en.wikipedia.org/wiki/Bisexuality (last visited March 3, 2014, as with allother Internet links herein).



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more bisexuals than homosexuals: The Janus Report on Sexual Behavior,

published in 1993, showed that 5 percent of men and 3 percent of women

considered themselves bisexual and 4 percent of men and 2 percent of women

considered themselves homosexual.Id.(footnote omitted) If proponents of gay

marriage, or mandatory legalized gay marriage, knew that statistic, on bisexuals

outnumbering homosexuals, they may have committed a gross material omission

by not telling the courts about it. E.g., there are so many people who, as the name

bisexual implies, could be attracted to either men or women or both, that the

myth of total immutability of sexual preference goes out the window.

In fact, the number may be far large than 5%: Alfred Kinsey's 1948 work

Sexual Behavior in the Human Malefound that 46% of the male population had

engaged in both heterosexual and homosexual activities, or reacted topersons of

both sexes, in the course of their adult lives.Id.(footnote omitted) And this huge

46% figure, id., almost 50%, was in 1948, when homosexuality was universally

illegal and castigated. What might the figure be now, when gay relations are not

only legal, but openly celebrated by many?

See also, e.g., A 2002 survey in the United States by National Center for

Health Statistics found that . . . . 2.8 percent of women ages 1844 considered

themselves bisexual, 1.3 percent homosexual, and 3.8 percent as something else.

Id.(footnote omitted) That would add up to,see id., 6.6 percent of women who



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were eitherper sebisexual, or sexually flexible. And the very term something

else, id., underlines the point of the fluidity of sexual orientation. (Moreover, note

thatper selesbians are outnumbered by over 5 to 1 by bisexual or something

else people,see id.)

So, if we conservatively assume that not even 5%, but only 4%, of the

population is bisexual, eitherper se(self-described) or de facto; and if there are c.

315 million Americans right now, then c. 12.6 million Americans are bisexual.

(Not all of them are of marriageable age yet, but they presumably will be.) If even

half of those marry, that is 6.3 million people, with roughly 3.15 million of them

marrying opposite-sex partners, and 3.15 million marrying a same-sex partner.

If gay marriage were unavailable, then, there are c. 3.15 million who, if they

marry, would marry opposite-sex partners. (And that may be a conservative figure:

if, say, 40% of bisexuals leaned toward heterosexuality, 40% leaned toward

homosexuality, and 20% were equally attracted to both sexes, then not 50%, but

60%, might marry opposite-sex partners.) Over three million people moved into

diverse-gender marriage provides far more than a scant de minimisnumber, or a

mere rational basis, for laws banning gay marriage; numbers of that proportion

provide an extremely compelling state interest.

The above numbers are not provably exact; but if the real-life numbers are

anywhere close to those figures, they make the case that opponents of gay-



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marriage bans, including some judges, have long claimed cannot be made. I.e.,

instead of there being no nexus between gay-marriage bans and the channeling of

people into heterosexual marriages, there is a direct and very strong nexus between

the bans and the moving of people into gender-diverse marriages. Thus, the test of

rational basis(or higher scrutiny) is definitively passed by SQ 711.

B. A Revelatory Law-Review Article about Gay-Marriage Bans Channeling

of People into Diverse-Gender Marriages

Even proponents of gay marriage admit, and lament, that laws or amendments

like SQ 711 channel bisexuals into heterosexual marriages. Seethe introductory

page of Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument

from Bisexuality, 49 San Diego L. Rev. 415 (2012), This Article proposes that

same-sex marriage bans channel individuals, particularly bisexuals, into

heterosexual relations and relationships[.]Id.at 416. Boucai supports gay

marriage, and believes (wrongly) that a gay-marriage ban violates fundamental

rights,see id. passim. So he is admitting against interest, so to speak, when he

acknowledges the channeling effect.

Some mechanisms by which traditional marriage laws channel the sexually-

flexible into traditional marriages include not only proscription of competing

institutions but also vast material support, and symbolic valorization, id.at 418



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(footnote omitted). (Polygamy is one proscribed competing institution, so gay

marriage is not alone in that respect.)

The article has multifarious other insightful observations. Biseuxals are a class

of individuals, amorphous yet numerous, id.at 438; 72.8% of all homosexually

active men identify as heterosexual, id.at 440; certain trends describe only self-

identified bisexuals. It wouldbe startling if bisexuals true rates of heterosexual

coupling and marriage were not significantly higher.Id.at 450; bisexuals are by

some estimates an invisible majority of LGBT people, id.at 483-84 (footnote

omitted); and, With regard to procreation, this Articles argument implicitly

concedes one way in which same-sex marriage bans advance the states interest:by

increasing the number of bisexuals who pursue same-sex relationships, legalization

presumably will decrease these individuals chances of reproducing.Id.at 482.

All these observations added together reinforce that the huge class of bisexual

persons, self-declared or not, can indeed be moved towards diverse-gender

marriages by bans on same-gender marriages.

And the articles observations come from someone who not only is for gay

marriage, but has some far more extreme views. There are non sequiturslike The

law forcefully directs people to marry, id.at 433 (footnote omitted). (How does

the law direct people to marry?) Also: Do they [claimants against marital

channeling in general] seek abolition of all or most forms of sexual regulation



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specific to marriage? If they seek abolition of marriage itself, is that remedy

constitutionally permissible? Affirmative answers to these questions are

conceivable[.]Id.at 437 n.139. But, are they really conceivable? The articles

astounding surmise that marriage itself could be found unconstitutional seems

absurd; but it does offer the inadvertent lesson that the same kind of invalid,

exaggerated reasoning can be used to support false causes like the mandatoriness

of legal gay marriage.

And further: Imagine a claim in custody cases that the variably and variously

impressionable psychosexual development of children is a basis for widening, not

limiting, the range of lifestyle choices to which they are exposed, with a citation

urging advocates to affirm that nonheterosexual parents create an environment in

which it is safer for children to openly express their own sexual orientations.Id.

at 484 & n.456. I.e., Boucai posits nonheterosexual parenting as better than

heterosexual parenting,see id.Or imagine a claim in disputes over gender-

segregated space thatheterosexist conditioning must not be legally installed into

the very architecture of our lives, with a citation suggesting that rules of urinary

sex-segregation support heterosexuality, id.at 484, 485 n.457. (Perhaps the

State/Straight Urinal Conspiracy might be convenient shorthand for the adduced

sinister government plot to brainwash people into heterosexuality via separate

bathrooms,see id.) The articles amazing assertions show the article is not from a



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right-wing, anti-gay-marriage perspective, but from so far to the left that typical

defenses of gay marriage are criticized as being too conservative, not radical

enough,see id. passim. Thus, the article has an insiders credibility which rings

true when the article criticizes gay-marriage-supporting litigants.

And the criticism is extensive. Bisexuality is virtually invisiblein same-sex

marriage litigation.Id.at 452. This is correct: inKitchen v. Herbert, 13-4178, the

February 25, 2014 reply brief by Kitchen et al., while using the words gay or

lesbian innumerable times, mentions the word bisexual only three times,see

id., as a sort of token appearance, and makes virtually no comment about

bisexual-particular issues. (But, tactically speaking, why wouldgay-marriage

proponents mention bisexuals in detail, since doing so would lead to a near-

automatic loss on the issue of whether gay-marriage bans do in fact move people

towards different sexual behavior?)

Also:

Bisexual invisibility in same-sex marriage litigation tends to be a

negative phenomenonerasure by mere omissionbut sometimes ithappens through affirmative, active deletion. In the Supreme Court of

California, plaintiffs argued that the state intentionally denies

lesbians and gay men the right to marry[.] In fact, the statesdetermination about these families, recorded in its Domestic Partner

Act, was that many lesbian, gay, and bisexual Californians have

formed lasting, committed, and caring relationships with persons ofthe same sex. Plaintiffs quote this language elsewhere in their brief,

dropping the legislaturesreference to bisexuals.



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Boucai Article at 455 (footnotes omitted). Because gay-marriage proponents in

general have not shown the care or candor to deal seriouslyor at allwith the

existence of a huge mass of bisexuals and their amenability to being influenced

towards heterosexual marriage by gay-marriage bans, Amicus does so here.

(Amicus is not pointing the finger at any particular party, or accusing anyone of

malice or dishonesty. But intentional or not, the omission of a discussion of

bisexualityspervasiveness, and its effects, is a gross material omission in any gay-

marriage case.

And by the way, the LGBT community privately acknowledges sexual

flexibility; the Court may have heard terms like hasbian and lesbians until

graduation, but there is also a term, yestergay,seeWiktionary,yestergay:41.

(slang, GBLT) A former gay male who is now in a heterosexual relationship.Id.)

C. The Successful Heterosexual Marriages of Some Gay Mormons: Further

Proof that Gay-Marriage Bans Are Effective

Theory aside, there are multifarious real-life examples of how channeling

people into diverse-gender marriages works. See, e.g., Carrie A. Moore, Gay LDS

4http://en.wiktionary.org/wiki/yestergay (as of June 17, 2013, at 18:59 GMT).



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men detail challenges: 3 who are married give some insights to therapist group,

Deseret News, Mar. 30, 2007, 12:22 a.m.,5

Speaking to a standing-room-only audience, three LDS couplesdescribed their experiences with their heterosexual marriages, despite

the fact that each of the husbands experience what they call same-sexattraction, or SSA. They said while they are basically happy,

navigating the emotional and physical aspects of their relationshipsrequires constant hard work.

. . . .

Because of the nature of the discussion, none of the participantswanted their identities publicized. Their names have been changed[.]

. . . .

[M]arriage and family . . . . was always the goal, even when I [onehusband] was in the wilderness.

. . . .

[I]t took years for them to be able to discuss [one husbands]

attraction to men. He said he made a lot of mistakesand the two ofthem talked about divorce, but he praised his wife for hanging in

there with me.

The wives said they see their husbands as much more than theirsame-sex attraction. Despite the challenges and public perception to

the contrary, one said, there are people who are married and dealing

with this.

Id.This revelatory story of courage and persistence teaches us much. It shows,see

id., that sexually-fluid or de factobisexual people (whether they call themselves

gay, bisexual, or heteroflexible) can be channeledas per the Boucai article

suprainto successful diverse-gender relationships. It also shows,see id., the fear

and anonymity that such people go through, perhaps obscuring their true, massive

numbers. (Seeagain the article, re trends [which] describe only self-identified

5http://www.deseretnews.com/article/660207378/Gay-LDS-men-detail-

challenges.html.



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bisexuals. It would be startling if bisexuals true rates of heterosexual coupling and

marriage were not significantly higher.Id.at 450. See alsoBisexuality,supraat 7,

on the [bigoted, reductive] notion that people are gay, straight or lying, and,

[B]isexuals must frequently contend with discrimination from gays, lesbians, and

straight society around the word bisexualand bisexual identity itself.Id.

(footnotes omitted)

D. The Defeat of the Lower Courts Argumentsfor the Ineffectiveness of a

Gay-Marriage Ban, by the Arguments Above

At this point, the lower courts arguments against gay marriage, Marriage is

incentivized for naturally procreative couples to precisely the same extent

regardless of whether same-sex couples (or other non-procreative couples) are

included,Bishop,supraat 1, at *106 (Kern, J.), and Exclusion from marriage

does not make it more likely that a same-sex couple desiring children, or already

raising children together, will change course and marry an opposite-sex partner

(thereby providing the ideal child-rearing environment),id.at *112, are either

totally destroyed or irrelevant.

If same-sex couples are not allowed to participate in State-recognized marriage,

then huge numbers of people, e.g., the gay or bisexual Mormon men notedsupraat

14-16, willbe incentivized, and havebeen incentivized, massively so, to enter

gender-diverse marriages. And the argument that those already in gay relationships



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will not change course may not alwaysbe true. For example, Ellen DeGeneres

former lesbian lover Anne Heche went on to marry, and have children, by a man,

see, e.g., Wikipedia,Mixed-orientation marriage.6But that argument is irrelevant

anyway, a red herring, because it ignores the sexually-fluid masses notin a gay

relationship, who will, if they wish to marry at all, choose diverse-gender

relationships.

Again, an intellectual tragedy of the gay-marriage debate is the pretense that

gay-marriage prohibitions are ineffective at reaching their goals. They are very

effective; and if we can stipulate that they are, we can avoid the further tragedy of

wasting time, and move onto step 2, which is whether the prohibitions are

constitutional. (Years, and thousands of pages, of wasted litigation effort could

have been avoided if both sides had so stipulated long ago.)

III. THE FAILURE OF THE UNDERINCLUSIVENESS ARGUMENT

AGAINST SQ 711

And the prohibitions are quite constitutional, despite badly-reasoned arguments

like an underinclusiveness argument. The lower court claims, Same-sex couples

arebeing subjected to a naturally procreativerequirement to which no other

Oklahoma citizens are subjected, including the infertile, the elderly, and those who

6http://en.wikipedia.org/wiki/Mixed-orientation_marriage (as of Feb. 15, 2014, at02:18 GMT).



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simply do not wish to ever procreate.Bishopat *110-*111. First off, the

categories the lower court mentions,see id., are very difficult to police. What

constitutes infertility? Especially at a time of advancing medical technology,

which may cure types of infertility previously thought incurable. (Some people

deliberately sterilize themselves; but that does not always work; and they may

always decide to have new surgery and become fertile again. Should there be a

Fertility Police to give everyone frequent examinations before and during

marriage? Probably not.)

Too, what constitutes the elderly? What age is that, precisely? Again,

advancing medical technology may assist fertility at later ages than previously

possible. As well, men often tend to be fertile longer than women, so that any

Senior-Citizen Fertility Police would run into equal-protection problems, in that

old men might be allowed to marry, while old women would not: an outrage.

As for those who simply do not wish to ever procreate: millennia of ribald

literature, plus common sense, confirm that even a sincere desire to remain

celibateor to consistently use birth control, between two romantic partners,

may last about as long as a dandelion blown into pieces by a warm summer wind.

Accidental pregnancies are frequent and no joke: and to have children born into

the protections of a stable, dual-gender marriage is highly desirable.



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By contrast, gender is very easy to understand and police. You may not know

your race, age, subconscious desires, or fertility: but unless you have verypoor

eyesight, all you have to do is undress and you will quickly find what gender you

are. This may be too common-sense an observation for some people; but Amicus

is, inter alia, trying to bring some badly-needed Oklahoma-style common sense to

the debate.

So, underinclusion fails as an objection to SQ 711.

IV. GRUTTER AND CHILDRENSBENEFIT FROM THE DIVERSE-

GENDER PARENTAGE INTO WHICH SQ 711 USHERS SEXUALLY-

FLUID PEOPLE; AND SQ 711S SOCIALLY-BENEFICIAL, LIFE-

AFFIRMING EXPRESSIVE CONTENT RE CASEYAND CARHART

But even if, arguendo, the underinclusion argument about human fertility and

procreation were correct, there is another ground upon which a gay-marriage ban

would be socially positive. Grutter v. Bollinger(539 U.S. 306 (2003)), as Amicus

has discussed in detail elsewhere before this Court, upholds gender diversity as a

compelling state interest,see id.This being so, and since it would be ludicrous to

say diversity is compelling in formal education but cannot even be rationally

relevant in 18 years of child-nurture, then a gender-diverse parentage is worthy of

special favor by the State.



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those marriages which can create life between the two partners. This expressive

message is perfectly constitutional.

Some may rejoin that Caseyand Carhart,supra, still permit some abortions,

while SQ 711 prohibits all gay marriages. However, this analogy is not apt. Gays

are still permitted to live their private sexual and relational lives any way they

want, followingLawrence v. Texas(539 U.S. 558 (2003)). They are just not given

a State blessing and funding for doing so. This is similar to how abortion is treated

in America: one is usually allowed to perform that physical act, but without

government endorsement,see Caseyand Carhart(allowing government to take

actions and send messages favoring a childs life instead of endorsing abortion),

and without government funding,see, e.g., the Hyde Amendment7(massively

limiting federal funding of abortion).

The court below has said, If a same-sex couple is capable of having a child

with or without a marriage relationship, and the articulated state goal is to reduce

children born outside of a marital relationship, the challenged exclusion hinders

rather than promotes that goal,Bishop at *108-*109; The reality is that same-sex

couples, while not able to naturally procreate, can and do have children by other

means, id.at *108; and Whether they are designed toor not, common sense

7Pub. L. 94-439, tit. II, 209, 90 Stat. 1434 (1976; amended 2009).



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dictates that many opposite-sex couples never actually do provide this optimal

child-rearing environment, due to drug use, abuse, or, more commonly, divorce.

Id.at 115. However: the question is of the kindof marital relationship a child will

be born into, or have to endure.

Polygamous families, too, produce children outside a legal marriage

relationship; yet a polygamyban is legal despite Oklahomas overall desire to

promote children born into marriage. Also: while some gay couples will use

artificial means to make a child, many will not. If they do, the child should have an

optimal environment, which a State may determine is provided by a two-gender

relationship, cf., e.g., Grutter,supra. And when the lower court proffers the feeble

truism that heterosexual couples are not actually perfect: of course they arent. No

one is claiming that every man-woman pair is the equivalent of Ward and June

Cleaver, or Joseph and Mary. Or even that they are all fertile.

Once again, there is the specter of policing. If Amicus notes that a non-gender-

diverse, gay male couple cannot breast-feed a child or provide a female role model,

hardcore opponents of SQ 711 might ask, But how do you know that a particular

woman has breasts? Or that she lactates? What if shes a serial killer? Etc. One

can slice and dice any human relationship until one finds something unpleasant.

But doing so to excess can look stupid. Is there going to be a Breast Police or

Lactation Surveillance Corps to keep certain women out of marriage, if someone



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deems that married women must be proved to be adequate breast-feeders? It is all

right to take some things on faith (or statistics), including that a huge number of

women, or men, will indeed be able to do the biologically-expected things of them.

And even a former serial killer (most women are not), if female, could still

provide love, including breastfeeding, and some quantum of positive female role-

modeling for a child, in a particular way that a male simply cannot. The truth is

that the two sexes are not fungible; a community made up exclusively of one is

different from a community composed of both[.]Ballard v. United States, 329

U.S. 187, 193 (1946) (Douglas, J.). So, common sense dictates that many

opposite-sex couples . . . actually do provide this optimal child-rearing

environment, to reverse the words of the lower court, when one considers the

optimality of the genders of the parents. If dual-gender, thatis optimal; and that

justifies SQ 711.

(When the Supreme Court decided Grutter, they did not say, Common sense

dictates that many racially- or gender-diverse admittees to college never actually

do provide an optimal educational environment, due to those students drug use,

etc.; so diversity doesnt matter. Nor should this Court say something similar to

that.)



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Thus, SQ 711, regardless of whether any one couple is fertile or not, promotes

new life, gender equity and desegregation, and diversity. And it, including its

expressive elements, does so completely constitutionally.

V. A SEX-DISCRIMINATION CLAIM IS NOT VIABLE

Nor is a sex-discrimination claim valid.If Amicus said that there are public

facilities that utterly exclude women, all across the country: this would sound

horrible, except when Amicus explains that the facilities are mens bathrooms.

Context is key here, as with gay marriage. (Incidentally, speaking out of out-of-

context commentary: the lower court says SQ 711 is insulting to same-sex

couples, who are human beings capable of forming loving, committed, enduring

relationships,Bishopat *118. But this observation is irrelevant, because any

number of people can form committed, long-term relationships, whether

polygamists, underage couples, adult incestuous couples, etc. The courts

sentimental assertion,see id., may seem a warm- and compassionate-sounding

sound bite: but it is not legally meaningful.)

Inter alia, how does it violate sex discrimination for SQ 711 toprohibita sex-

segregated environment for children, i.e., a mono-sex couple, as opposed to a dual-

sex one? To claim otherwise turns the idea of sex discrimination on its head.

Actually, it seems the one who might have a sex-discrimination or sex-segregation



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claim would be the childrenof a same-sex couple, at least if those children were

not happy with that sex-segregated environment. Thinking upon the Kelly

Faircloth article, The ACLU Kicks Up a Fuss About Sex-Segregated Middle School

Classes, Jezebel, January 24, 2014, 3:15 p.m.8(re lawsuit about sex-segregated

classrooms): if sex-segregated student bodies are damaging, why could sex-

segregated teachers (including parents) not be?

Children have, often through next friends, sued school districts because of the

segregated or discriminatory atmosphere. But any particular school may have a

child for only a few years compared to the parents, and thus do less damage.

By contrast, a race-segregation suit against parents might be difficult: in a two-

person relationship, considering the multifarious races of the world, what would

constitute a desegregated couple? Could that really be policed?

By contrast, it is paradigmatically easy to police who is a man or a woman.

There are only two sexes, with obvious biological markers. And the State would be

leaving the old tradition of diverse-gender marriage to make a special effort to

specifically create sex-segregated marriage, so that there would be a state action

nexus. (This is why the State, and parents, may be easier for a child to sue than, a

8 http://jezebel.com/the-aclu-kicks-up-a-fuss-about-sex-segregated-middle-sc-

1506578292.



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sex-segregatedprivateschool that the child does not like: no state-action nexus

may exist re the private school.)

Kids suing their parents for offering a sex-segregated environmentnot suing

them for being gay, but because of the segregation and lack of diversitymay be

at least as plausible as claiming that gay-marriage bans are sex discrimination.

Plaintiffs would have the tradition of diversity and desegregation on their side,

which is no small thing. See, e.g.,Brown v. Bd. of Educ. (347 U.S. 483 (1954))

(condemning segregated learning environments for children).

One man saying he suffers sex discrimination because he cannot marry

another man, is somewhat like saying that bans on underage marriage

discriminate against children. The contextual issues, in each case, prevent

discrimination from being a real claim. (And even if it were a real claim and

triggered heightened scrutiny: the substantial or compelling interests of diverse-

gender parenting, respecting life and fertility, not subsidizing inherently-risky sex

like sodomy, etc., especially when combined together, would still justify SQ 711.)

VI. A SEXUAL-ORIENTATION-DISCRIMINATION CLAIM IS NOT

VIABLE; AND, UPHOLDING SQ 711 WOULD NOT PRECLUDE THIS

COURT FROM INTERVENING IN ALLEGED EMPLOYMENT, OR

OTHER, DISCRIMINATION AGAINST GAYS



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And upholding Oklahomas chosen gay-marriage ban would not estop this

Court from finding that gays have suffered illegal discrimination in employment or

other fields unrelated to marriage, if this Court wanted to. The rational basis with

a bite(disallowing laws based purely on animus) test may be enough to prevent

irrational discrimination. For example, since a gay person can presumably flip a

hamburger as well as a heterosexual, it might be considered irrational or animus-

laden for a restaurateur to fire the gay burger-flipper for being gay. (This spirit of

this common-sense observation may bebehind Arizona governor Jan Brewers

recent vetoing of SB 1062, due to its use of religion,see id., to let business avoid

involvement with anybody they dont like, which might include gays. But Arizona

still bans gay marriage, which shows that gay-marriage bans are distinguishable

from potentially-discriminatory business-related legislation or private decisions.)

A further real-life example: Ireen Wst, the Dutch speedskater who just won 2

gold and 3 silver medals at the 2014 Sochi Winter Olympics,seeWikipedia,Ireen

Wst,9is bisexual and formerly was in a relationship with a fellow female

speedskater, but is now with a man,see id.While her sexual orientation seems not

to have affected her athletic abilities, it is hard to doubt that if she were still in a

lesbian relationship, she could have no natural childrenor if she and her partner

9http://en.wikipedia.org/wiki/Ireen_W%C3%BCst (as of Feb. 23, 2014, at11:04

GMT).



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adopted children, those children would not have the advantages of a gender-diverse

parentage. (Incidentally, Holland has gay marriage, but it also has a monarchy:

how much of a real commitment to social equality exists there when the head of

state is hereditary and has to be whiteDutch royal family, house of Orange-

Nassau, Amicus shall let readers ponder.)

So whether someone can be a world-class athlete or not, that does not mean she

can provide a child an optimum parental environment. Similarly, gay athletes

Michael Sams and Jason Collins of the NFL and the NBA might be superb at their

sports, but that does not mean they can get pregnant, breast-feed, or serve as a

female role model. And those things may be more important than being a

champion athlete.

Alternately, the Court would not be precluded from adopting a heightened level

of scrutiny in issues relating homosexuality to employment or other issues besides

marriage, if the Court truly desired. (Amicus is not recommending the Court adopt

higher scrutiny, only saying that maintaining a rational-basis level of scrutiny re

gay marriage does not rule out higher scrutiny in different settings.)

This kind of bifurcation in levels of scrutiny has been done before,see Cabell v.

Chavez-Salido, 454 U.S. 432, 439 (1982) (applying strict scrutiny to alienage, but a

lower level of scrutiny re political classifications). Therefore, it could also be done

in the Tenth Circuit if and as needed.



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Id.

VIII. THE WISDOM OF THE OKLAHOMAN PEOPLE ON SQ 711 MAY

COMPRISE MORE THAN MIDWESTERN PREJUDICE

Oklahoma is a particularly interesting State in which to have this legal debate,

seeing the Sooner States place in the national consciousness. Whether it is the

reddest of the red states or not, Oklahoma has long been celebrated as a home of

traditional values. Of course, the musical Oklahoma!11

is one of the best-known

media productions showing the State where the wind comes sweeping down the

plain and the corn is as high as an elephants eye, id., in that light.

Some also see Oklahoma in a traditionalist light but from a more mordant point

of view,see, e.g., the song Okie from Muskogee12by Merle Haggard, emphasizing

Oklahomans difference from less-patriotic, or more drug-using, people elsewhere,

see id.And recently, there is a negative view of the State, in the filmAugust:

Osage County,13showing Oklahomans as plagued by incest, viciousness,

hypocrisy, alcoholism, drug addiction, and other vices. The film even insults the

plains as being empty and sterile,see id.

11Richard Rodgers and Oscar Hammerstein II (1943).12Capitol Records 1969.13Directed by John Wells; Smokehouse Pictures/The Weinstein Company 2013(based on the 2007 play by Tracy Letts).



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One lesson we can learn from the three workssuprais that fertility, and

families optimally serving children, are good, even if they arent easy to achieve,

and may need traditional values to bolster. And religion or moralism may not be

determinative here, either: infertility can be harmful to a society, even in an

atheists or libertines view. Thus, average Oklahomans, even if not always able to

articulate the good parts of their traditionalist values in trenchant legalistic

termssuch as evoking Grutter to defend solely gender-diverse marriages, still

may be far wiser than academics, activists, or others who see Oklahomans as

witless, Bible-thumping bigots. And their decision in SQ 711 not to endorse and

fund one particular form of non-traditional marriage should not be discarded by

this Court.

Or, put otherwise, diverse-gender marriage is not good because it is traditional;

it is traditional because it is good.

* * *

Overall, gay marriage may be the tip of the iceberg: the issue of bisexual

marriage, or sexually-fluid-person marriage, may be a numerically more significant

issue. And to figure that out, one doesnt even need to know that a prominent

social network recently added 56 gender options,see, e.g., Will Oremus,Here Are

All the Different Genders You Can Be on Facebook, Slate, Feb. 13, 2014, 3:03



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p.m.14Amicus is trying to show the Court the rest of the iceberg, the part that gay-

marriage advocates are not really talking about. And perhaps the people of

Oklahoma understand the whole iceberg in ways that deserve credit, even judicial

endorsement.

CONCLUSION

Amicus respectfully asks the Court to reverse the judgment of the court below;

and humbly thanks the Court for its time and consideration.

March 3, 2014 Respectfully submitted,

s/David Boyle




14 http://www.slate.com/blogs/future_tense/2014/02/13/facebook_custom_gender_

options_here_are_all_56_custom_options.html.



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CERTIFICATE OF COMPLIANCE AND WORD COUNT

The undersigned certifies that the accompanying Brief of Amicus Curiae David

Boyle Supporting Defendant-Appellant and Supporting Reversal, in 14-5003 and

14-5006, is in 14-point, proportionately-spaced Times New Roman font; and that

its length, exclusive of exempt sections including the table of contents and table

of authorities/citations, etc., is 7000 words, since his Microsoft Word 2010 word-

processing program states the word count is 7000 words.

s/David Boyle

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY

REDACTIONS

The undersigned certifies that

1. all required privacy redactions have been made, if any were in fact required;

2. hard copies of the Brief of Amicus Curiae David Boyle Supporting Defendant-

Appellant and Supporting Reversal, in 14-5003 and 14-5006, are exact copies ofthe brief as submitted electronically; and

3. the electronic submission was scanned by a McAfee Anti-Virus and Anti-Spyware Program, version 16.8, updated earlier today, and, per that program, is

virus-free.

s/David Boyle



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CERTIFICATE OF SERVICE

The undersigned certifies that he electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by

using the appellate CM/ECF system on March 3, 2014.

He also certifies that all parties or their counsel of record, and any amici curiae

listed as present in the case, were served through the CM/ECF system if they are

registered CM/ECF users. The e-mail addresses ofparties counsel:

Byron Jeffords [email protected]

James Andrew Campbell

[email protected]

David Austin Robert [email protected]

John David Luton

[email protected]

Counsel for Defendant-Appellant/Cross-Appellee

Don Gardner [email protected]

James Edward Warner, III

[email protected]

Joseph Thai

[email protected]



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Counsel for Plaintiffs-Appellees/Cross-Appellants

W. Scott Simpson

[email protected]

Counsel for Defendant

Kerry W.Kircher

[email protected]

Counsel for Defendant-Intervenor

Thank you for your time,

March 3, 2014 Respectfully submitted,

s/David Boyle





14-5003 5006 amicus brief of david boyle

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