nos. 14-556, 14-562, 14-571, 14-574 supreme court of the ... · 06/03/2015 · nos. 14-556,...

Nos. 14-556, 14-562, 14-571, 14-574

Supreme Court of the United States

No. 14-556

JAMES OBERGEFELL, et al., and BRITTANI HENRY, et al.,

Petitioners,—v.—

RICHARD HODGES, Director, Ohio Department of Health, et al.,

Respondents.

(Caption continued on inside cover)

ON WRITS OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE CARLOS A. BALL,DISTINGUISHED PROFESSOR OF LAW, RUTGERS

UNIVERSITY; ALFRED BROPHY, JUDGE JOHN J. PARKERDISTINGUISHED PROFESSOR OF LAW, UNIVERSITY OF

NORTH CAROLINA SCHOOL OF LAW; JULIE NOVKOV,PROFESSOR AND CHAIR, DEPARTMENT OF POLITICAL

SCIENCE, UNIVERSITY AT ALBANY, SUNY; SCOTT SKINNER-THOMPSON, ACTING ASSISTANT

PROFESSOR, NYU SCHOOL OF LAW; RICHARD F.STORROW, PROFESSOR OF LAW, CITY UNIVERSITY

OF NEW YORK IN SUPPORT OF PETITIONERS

d

PAUL J. HALLCounsel of Record

JEFF DEGROOTGEORGE GIGOUNASJESSE MEDLONGDLA PIPER LLP (US)555 Mission Street, Suite 2400San Francisco, CA 94105-2933(415) [email protected]

Attorneys for Amici Curiae

CARLOS A. BALLDistinguished Professor

of LawRUTGERS UNIVERSITY

SCHOOL OF LAW123 Washington StreetNewark, NJ 07102

No. 14-562

VALERIA TANCO, et al.,Petitioners,

—v.—

BILL HASLAM, Governor of Tennessee, et al.,

Respondents.

No. 14-571

APRIL DEBOER, et al.,Petitioners,

—v.—

RICK SNYDER, Governor of Michigan, et al.,

Respondents.

No. 14-574

GREGORY BOURKE, et al., and TIMOTHY LOVE, et al.,

Petitioners,—v.—

STEVE BESHEAR, Governor of Kentucky, et al.,

Respondents.

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64746 • DLA Piper • TCA -- Obergfell v. Hodges • 3rd Proof 3 - 5-15

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. ANTIMISCEGENATION LAWS WEREJUSTIFIED BY PSEUDOSCIENTIFICAND PSEUDOEMPIRICAL CLAIMSABOUT SOCIAL AND CHILD WELFARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. LAWS PROHIBITING DISABLEDINDIVIDUALS FROM MARRYING WERE JUSTIFIED BYPSEUDOSCIENTIFIC ANDPSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. LEGAL DISCRIMINATION AGAINSTNONMARITAL CHILDREN WASJUSTIFIED BY PSEUDOSCIENTIFICAND PSEUDOEMPIRICAL CLAIMSABOUT SOCIAL AND CHILDWELFARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TABLE OF CONTENTSPAGE

iiPAGE

IV. OPPONENTS OF SAME-SEX MARRIAGE CONTINUE TO MAKEPSEUDOSCIENTIFIC ANDPSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26


iii

Bowlin v. Commonwealth,65 Ky. 5 (1867) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Brown v. Board of Education,347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . 12

Clark v. Jeter,486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . 23

Cleburne v. Cleburne Living Center,473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . 16

DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) . . . . . . . . 23, 24, 25

Dodson v. State,31 S.W. 977 (Ark. 1895) . . . . . . . . . . . . . . . . . 5

Ellis v. State,42 Ala. 525 (1868) . . . . . . . . . . . . . . . . . . . . . . . . 5

Gomez v. Perez,409 U.S. 535 (1973) . . . . . . . . . . . . . . . . . . . . . . 23

Gould v. Gould,61 A. 604 (Conn. 1905) . . . . . . . . . . . . . . . . . . 16

Green v. State,58 Ala. 190 (1877) . . . . . . . . . . . . . . . . . . . . . . . . 5

Jimenez v. Weinberger,417 U.S. 628 (1974) . . . . . . . . . . . . . . . . . . . . . . 22

Labine v. Vincent,401 U.S. 532 (1971) . . . . . . . . . . . . . . . . . . . . . . 21, 22

TABLE OF AUTHORITIESPAGE(S)Cases:


ivPAGE(S)

Lalli v. Lalli,439 U.S. 259 (1978) . . . . . . . . . . . . . . . . . . . . . . 22

Levy v. Louisiana,391 U.S. 68 (1968) . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Lonas v. State,50 Tenn. 287 (1871) . . . . . . . . . . . . . . . . . . . . . . 6

Loving v. Virginia,388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . 4, 11, 12, 13

McLaughlin v. Florida,379 U.S. 184 (1964) . . . . . . . . . . . . . . . . . . . . . . 10

New Jersey Welfare Rights Org. v. Cahill,411 U.S. 619 (1973) . . . . . . . . . . . . . . . . . . . . . . 23

Olmstead v. L.C. ex rel. Zimring,527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . 16

Perez v. Sharp,198 P.2d 17 (Ca. 1948) . . . . . . . . . . . . . . . . . 8, 9, 23

Scott v. Georgia,39 Ga. 321 (1869) . . . . . . . . . . . . . . . . . . . . . . . . 6

Skinner v. Oklahoma,316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . . 16

State v. Brown,108 So. 2d 233 (La. 1959). . . . . . . . . . . . . . . . 12

State v. Gibson,36 Ind. 389 (1871) . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Hairston,63 N.C. 451 (1869) . . . . . . . . . . . . . . . . . . . . . . . 5


vPAGE(S)

State v. Jackson,80 Mo. 175 (1883) . . . . . . . . . . . . . . . . . . . . . . . . 7

Weber v. Aetna Casualty & Surety Co.,406 U.S. 164 (1972) . . . . . . . . . . . . . . . . . . . . . . 22

Statutes:

Civil Rights Act of 1866 . . . . . . . . . . . . . . . . . . . . . . 5

Other Authorities:

A. Leon Higginbotham, Jr. & Barbara K.Kopytoff, Racial Purity and InterracialSex in the Law of Colonial and Antebellum Virginia, 77 Geo. L.J. 1967, 1994 n.127 (1989) . . . . . . . . . . . . . . . . . 4

Albert I. Gordon, Inter-Marriage: Interfaith,Interracial, Interethnic (1964) . . . . . . . . . . 11

An Act for Suppressing Outlying Slaves, in The Statutes at Large; Being a Collection of All the Laws of Virginia Vol. 3, pp. 86-87 (William Waller Heninged., 1823) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Carlos A. Ball, Same-Sex Marriage and Children: A Tale of History, Social Science, and Law (2014) . . . . . . . . . . . . . . . . . 24

Christopher Tiedeman, A Treatise on theLimitations of the Police Power in the United States 536 (1886) . . . . . . . . . . . . . . . . 14


viPAGE(S)

David Popenoe, Life Without Father: Compelling New Evidence That Fatherhood & Marriage Are IndispensableFor The Good Of Children & Society146 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Edward J. Larson, Sex, Race, and Science:Eugenics in the Deep South 22 (1995) . . . 15

Edward W. Spencer, Some Phases of Marriage Law and Legislation from aSanitary and Eugenic Standpoint, 25 Yale L. J. 58, 64 (1915). . . . . . . . . . . . . . . . . . . 15

Emma O. Lundberg, Children of IllegitimateBirth and Measures for Their Protection(Children’s Bureau, U.S. Dep’t of Labor,Bureau Publication No. 166, 1926) . . . . . 19

Gregory Michael Dorr, Principled Expediency:Eugenics, Naim v. Naim, and the SupremeCourt, 42 Am. J. Legal Hist. 119, 124(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Harry D. Krause, Equal Protection for theIllegitimate 65 Mich. L. Rev. 477 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

J.P. Chamberlain, Eugenics and Limitations of Marriage 9 A.B.A. J. 429, 429 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

John Witte, Jr., The Sins of the Fathers: The Law and Theology of IllegitimacyReconsidered 139 (2009) . . . . . . . . . . . . . . . . . 18


viiPAGE(S)

Kingsley Davis, Illegitimacy and the SocialStructure 45 Am. J. Soc. 215, 219 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Kristin Anderson Moore et al., Child Trends,Marriage From a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?1–2 (2002), available athttp://www.childtrends.org/files/MarriageRB602.pdf . . . . . . . . . . . . . . . . 23

Madison Grant, The Passing of The Great Race: Or the Racial Basis of EuropeanHistory 47 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Matthew B. O’Brien, Why Liberal NeutralityProhibits Same-Sex Marriage: Rawls,Political Liberalism, and the Family 2012 Brit. J. Am. Leg. Stud. 411). . . . . . . 24

Michael Grossberg, Governing The Hearth: Law and the Family in Nineteenth-Century America 197–98 (1988) . . . . . . . . 18

Michael Grossberg, Guarding the Altar:Physiological Restrictions and the Rise of State Intervention in Matrimony 26 Am. J. Legal Hist. 197, 219 (1982) . . . . . 13, 14

Negro Womens Children to Serve Accordingto the Condition of the Mother, in TheStatutes at Large; Being a Collection of All the Laws of Virginia Vol. 2, p. 170 (William Waller Hening ed.,1823) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


viiiPAGE(S)

Peggy Pascoe, What Comes Naturally:Miscegenation Law and the Making of Race in America 115–23 (2009) . . . . . . . . . 7

Percy Gamble Kammerer, The UnmarriedMother: A Study of Five Hundred Cases (1918) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values 81Colum. L. Rev. 1418, 1432 (1981) . . . . . . 14

Thomas A. Foster, Sex and the Eighteenth-Century Man: Massachusetts and the History of Sexuality in America 129 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . 5


INTEREST OF AMICI CURIAE

Amici1 consist of a group of scholars who havetaught and written on the history of family lawand policy. This brief aims to provide the Courtwith an explanation of the ways in whichpurportedly scientific evidence and claims havebeen used historically to justify discriminatorypolicies in family law. The amici scholars2 areCarlos A. Ball, Distinguished Professor of Law,Rutgers University; Alfred Brophy, Judge John J.Parker Distinguished Professor of Law, Universityof North Carolina School of Law; Julie Novkov,Professor and Chair, Department of PoliticalScience, University at Albany, SUNY; ScottSkinner-Thompson, Acting Assistant Professor,NYU School of Law; Richard F. Storrow, Professorof Law, City University of New York.

1 Pursuant to Sup. Ct. R. 37.6, amici certify that nocounsel for a party authored this brief in whole or in part,and no party or counsel for a party made a monetarycontribution intended to fund the preparation or submissionof this brief. No person other than amici, their employees, ortheir counsel made a monetary contribution to the preparationor submission of this brief. Letters from Respondents con-senting to the filing of amicus curiae briefs in support ofeither party or of neither party have been filed with theClerk of the Court. Amici have received written consent tothe filing of this brief from each Petitioner.

2 Amici appear in their individual capacities;institutional affiliations are listed for identificationpurposes only.

SUMMARY OF ARGUMENT

The history of past c lass-based maritalexclusions has clear implications for the presentappeal . That history teaches us that theempirical-sounding, pseudoscientific assertions ofone era’s jurists and counsel often are revealed asinvidious and indefensible discrimination overtime. Such empirical-sounding, pseudoscientificassertions have been advanced in underlyingbriefs, including amici briefs filed in the U.S.Court of Appeals for the Sixth Circuit by marriageequality opponents, which argue that denyingmarriage to same-sex couples promotes the well-being of society and children. These briefs, andproponents of s imilar arguments, describehouseholds headed by married heterosexuals whoare biologically related to their children as the“optimal” setting for rearing children. They arguethat other family structures—including ones ledby same-sex couples—undermine the well-being ofsociety and children.

How class-based marital exclusions weredefended in the past—and how those justificationslater were exposed as false—should influence thisCourt ’s assessment of s imilar defenses andjustifications here. Exclusionary policies aimed atdenying entire c lasses of individuals theopportunity to marry have been rare in Americanhistory. Most have involved attempts to rely onsupposedly “scienti f ic” evidence to justi fyinvidious discrimination by contending thatcertain family structures were bad for society andchildren. These ef forts included laws (1)prohibit ing couples of di f ferent races frommarrying; (2) restricting people with mental

2

disabilities from marrying; and (3) denying rightsand benefits to nonmarital children.

Proponents of these historical c lass-basedmarital exclusions defended the use of stateauthority to define marriage and its accompanyingbenefits to promote what they believed weresocial ly optimal goals in matters related toprocreation, family formation, and child welfare.Supporters frequently justified these laws withpseudoscientific claims about the well-being ofsociety and children, which they claimed wereself-evidently true. For instance, the GeorgiaSupreme Court upheld Georgia’s antimiscegenationstatute based on the Court’s “daily observation”that children of mixed-race couples are “sickly andinferior.” In upholding Connecticut’s law banningmarriage by disabled persons, the ConnecticutSupreme Court relied on pseudoscientific claims itdescribed as “common knowledge” subject tojudicial notice.

It is now clear that these earlier defenses ofclass-based marital exclusions, though they had aveneer of empiricism, were grounded in deeplyheld prejudices and biases. The passage of timehas shown that these earlier justifications wereconstitutionally impermissible, morally unaccept-able, and empirically indefensible. This Courtshould reject arguments attempting similarjustifications for denying same-sex couples theopportunity to marry.

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ARGUMENT

I. ANTIMISCEGENATION LAWS WEREJUSTIFIED BY PSEUDOSCIENTIFICAND PSEUDOEMPIRICAL CLAIMS ABOUTSOCIAL AND CHILD WELFARE

Virginia implemented the earliest and mostcomprehensive regulation of interracialrelationships in the American colonies. Initially,those efforts focused not on marriage, but on thelegal status of interracial children.

Three decades before Virginia banned marriageacross color lines, it addressed the birth of agrowing number of interracial children by makingthe legal status of interracial children dependenton the mothers’ status. Negro Womens Children toServe According to the Condition of the Mother, in2 The Statutes at Large; Being a Collection of Allthe Laws of Virginia 170 (William Waller Heninged., 1823). The statute’s purpose was to make surethe law considered the interracial children offemale slaves also to be slaves. See A. LeonHigginbotham, Jr. & Barbara K. Kopytoff, RacialPurity and Interracial Sex in the Law of Colonialand Antebellum Virginia, 77 Geo. L.J. 1967, 1994n.127 (1989).

Virginia’s first statute banning interracialmarriages, enacted in 1691, reflected this focus onchildren. That law, whose progeny this Courtstruck down almost three hundred years later inLoving v. Virginia, 388 U.S. 1 (1967), was enactedto “prevent . . . that abominable mixture andspurious issue which hereafter may encrease inthis dominion . . . .” An Act for SuppressingOutlying Slaves, in 3 The Statutes at Large; Being

4

a Collection of All the Laws of Virginia 86-87(William Waller Hening ed., 1823). The law’slanguage shows the legislators’ motivation incondemning marriages that crossed racial lineswas rooted in an objection to the offspring ofinterracial relationships.

Virginia was not alone in enacting anti -miscegenation laws. Other colonies, both in thesouth and the north, did the same, several usingthe statutory model adopted by Virginia. Forexample, Massachusetts’s antimiscegenation lawof 1705 called for the prevention of “a Spuriousand Mixt Issue.” Thomas A. Foster, Sex and theEighteenth-Century Man: Massachusetts and theHistory of Sexuality in America 129 (2007).

The validity of these laws was not challenged inthe courts until after the Civil War, the enactmentof the Civil Rights Act of 1866, and the adoption ofthe Fourteenth Amendment. Courts in the secondhalf of the nineteenth century consistently upheldantimiscegenation laws by contending thatmarriage was a question of societal well-being, notindividual r ights implicating the U.S.Constitution. See, e.g., Dodson v. State, 31 S.W.977 (Ark. 1895); State v. Gibson , 36 Ind. 389(1871); State v. Hairston, 63 N.C. 451 (1869).Some state high courts also held that theFourteenth Amendment’s equality protections andthe Civil Rights Act of 1866 were not implicatedby marriage restrictions that applied equally towhites and blacks. See, e.g., Ellis v. State, 42 Ala.525 (1868); Green v. State, 58 Ala. 190 (1877).

These rulings ref lected a growing pseudo-scienti f ic and eugenic understanding ofantimiscegenation laws. The Kentucky Court of

5

Appeals in 1867 worried that the legalization ofmarriages by mixed-race couples would lead to the“deteriorat[ion of] the Caucasian blood.” Bowlin v.Commonwealth, 65 Ky. 5, 9 (1867). Two yearslater, the Georgia Supreme Court, in upholdingthe criminal conviction of a black woman formarrying a white man, proclaimed:

the amalgamation of the races is not onlyunnatural, but is always productive ofdeplorable results. Our daily observationshows us, that the of fspring of theseunnatural connections are generally sicklyand effeminate, and that they are inferiorin physical development and strength, tothe ful l -blood of e i ther race . I t issometimes urged that such marriagesshould be encouraged, for the purpose ofelevating the inferior race. The reply is,that such connections never elevate theinferior race to the posit ion of thesuperior, but they bring down the superiorto that of the inferior. They are productiveof evi l , and evi l only, without anycorresponding good.

Scott v. Georgia, 39 Ga. 321, 324 (1869) (emphasisadded). The Tennessee Attorney Generalexpressed a s imilar view in 1871 when heanalogized antimiscegenation laws to ancient“Mosaic laws” that forbade Jews from inter-breeding different animals, such as horses withdonkeys to create mules. According to the stateofficial, a law against “breeding mulattoes” wasnot any more problematic since it was also aimedat “prevent[ing] the production of [a] hybrid race.”Lonas v. State, 50 Tenn. 287, 299 (1871).

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The Missouri Supreme Court in 1883 wastroubled by the purported inability of biracialindividuals to procreate—in its view, a sufficientbasis to find antimiscegenation laws constitu-tional. As the court explained, in a prejudice-driven misunderstanding of biology, “it is . . . awell authenticated fact that if the issue of a blackman and a white woman and a white man and ablack woman intermarry, they cannot possiblyhave any progeny, and such a fact sufficientlyjustifies those laws which forbid the intermarriageof blacks and whites.” State v. Jackson, 80 Mo.175, 179 (1883).

Since colonial days, many Americans understoodinterracial procreation to be unnatural. But theviews of these postbellum courts and officialsref lected new concerns related to supposedreproductive barrenness, hereditary deterioration,and physical and psychological deficiencies ofinterracial offspring. Arguments to keep marriagewithin color lines grew to include sociobiologicalconsiderations grounded in supposedly empiricalclaims about procreation and the well-being ofchildren. We now know such claims had no basesin fact and were driven by racist viewsantithetical to the notion that all Americans areentitled to equal treatment under law.

Defenders of antimiscegenation laws legitimizedthat ideology by turning to the “science” ofeugenics. Peggy Pascoe, What Comes Naturally:Miscegenation Law and the Making of Race inAmerica 115–23 (2009). Many proponents of “raceregeneration” and avoidance of “race suicide” sawantimiscegenation laws as important tools topromote ‘procreative optimality . ’ See, e .g . ,

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Madison Grant, The Passing Of The Great Race:Or the Racial Basis of European History 47, 60(1916) (contending interracial marriages promoted“race suicide” and insist ing “ laws againstmiscegenation must be greatly extended if thehigher races are to be maintained.”); see alsoGregory Michael Dorr, Principled Expediency:Eugenics, Naim v. Naim, and the Supreme Court,42 Am. J. Legal Hist. 119, 124 (1998) (“Americaneugenicists generally . . . argued for the scientificdefense of civilization through racial purity, usingtheir theories about race mixing to shape publicpolicy.”).

Even after eugenics was discredited for itsuntenable moral positions and unsupportablescientific claims, defenders of antimiscegenationlaws invoked eugenics and procreative optimalitywhen defending race-based marital bans in court.For example, in defending the constitutionality ofits antimiscegenation law before the CaliforniaSupreme Court in 1948, see Perez v. Sharp, 198P.2d 17 (Ca. 1948), the State raised eugenic andsociological arguments centered on procreationand child welfare.

In Perez, the State first claimed whites weresuperior to other races and the progeny of raciallymixed couples were inferior to the progeny ofwhite couples. According to the State, themarriage ban “prevent[ed] the Caucasian racefrom being contaminated by races whose membersare by nature physically and mentally inferior toCaucasians.” Id. at 23. California also contendedthe biological data showed “the crossing of widelydifferent races has undesirable biological results”and “the parties who enter into miscegenetic [sic]

8

marriages have proved generally to be the dregs ofboth races,” making it likely “the offspring of suchmarriages will turn out to be inferior to both oftheir parents.” Respondent’s Supplemental Briefin Opposition to Writ of Mandate at 62, 78, Perezv. Sharp, 198 P.2d 17 (Ca. 1948).

Besides relying on racist eugenic c laims,California defended its antimiscegenation law onsupposedly sociological grounds. The Statecontended interracial marriages led to greatersocial tension because most people disapproved ofthem. Perez, 198 P.2d at 25. The State claimedblacks were “socially inferior,” and “the progeny ofa marriage between a Negro and a Caucasiansuffer not only the stigma of such inferiority butthe fear of rejection by members of both races.” Id.at 26. According to the State, antimiscegenationlaws promoted child welfare by protecting childrenfrom the social inferiority and st igma thataccompanied their parents’ marriages.

The court in Perez rejected the contention thatchildren of interracial unions were defective ordeficient. Id . at 23–24. That court explainedwhites’ greater societal success resulted not frommental superiority, but from the social advantagesof their skin color. Id . at 24. The CaliforniaSupreme Court rejected the State’s argument thatthe stigma suffered by racially mixed childrenjustified the marriage ban, reasoning “the faultlies not with their parents, but with the prejudicesin the community and the laws that perpetuatethose prejudices by giving legal force to the beliefthat certain races are inferior.” Id. at 26. TheCourt further explained “[t]he effect of raceprejudice upon any community is unquestionably

9

detrimental both to the minority that is singledout for discrimination and to the dominant groupthat would perpetuate the prejudice. It is noanswer to say that race tension can be eradicatedthrough the perpetuation by law of the prejudicesthat give rise to the tension.” Id. at 25.

The Cali fornia Supreme Court ’s opinioninvalidating the antimiscegenation law under thefederal Constitution rejected the State’s purportedchild-based justifications for that law. But Floridarelied on those justifications fifteen years later todefend a statute criminalizing mixed-racecohabitation. See McLaughlin v. Florida, 379 U.S.184 (1964) . The State c laimed the statuteprevented psychological and social harm tochildren born from interracial relationships. Briefof Appellee, McLaughlin v. Florida at 41–42, 379U.S. 184 (1964). Florida argued that its interest inavoiding such harm justified the enactment ofantimiscegenation laws and the interracialcohabitation ban. The State’s brief explained:

it is well known that both the white andthe negro race tend to shun the offspringof interracial marriages . . . . The needof offspring to identify with others is awell understood psychological factor inpresent times. The interracial offspringare not fully accepted by either race.There is therefore a clear psychologicalhandicap problem among interracialoffspring.

Id. at 42. According to the State, the“psychological handicaps of children born ofnegro–white parentage” were enough to upholdthe constitutionality of its statute. Id. at 44.

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Virginia raised the same concerns aboutprocreation and chi ld welfare to defend itsantimiscegenation law in Loving v. Virginia, 388U.S. 1 (1967). Its brief to this Court in Lovingquoted extensively from a book by Albert I .Gordon, a rabbi trained as a sociologist. Albert I.Gordon, Inter-Marriage: Interfaith, Interracial,Interethnic (1964). Claiming the marriages ofmixed-race couples were more likely to end indivorce than same-race ones, Gordon arguedinterracial unions should be avoided because theyharmed children. Gordon explained

[p]ersons anticipating cross-marriages,however much in love they may be, havean important obl igation to unbornchildren. It is not enough to say that suchchildren will have to solve their ownproblems ‘when the t ime comes. ’Intermarriage frequently produces majorpsychological problems that are notreadily solvable for the children of theintermarried . . . . [I]t is not likely thatthe child will come through the maze ofroad blocks without doing some damage tohimself.

Id. at 354 (quoted in Brief of Appellee, Loving v.Virginia, U.S. Supreme Court, 388 U.S. 1 (1967),at Appendix B). Gordon added that the children ofinterracial marriages often were “disturbed,frustrated and unable to believe that they can livenormal, happy lives.” Id. at 370 (quoted in Brief ofAppellee, Loving v. Virginia, 388 U.S. 1 (1967), atAppendix B).

Virginia, in a deeply ironic move, also defendedits antimiscegenation law by analogizing the

11

purported psychological harm to children from thesocial stigma of mixed-race marriages to the wayssegregated schools harmed black children asrecognized by this Court in Brown v. Board ofEducation, 347 U.S. 483 (1954). By claiming topromote chi ldren’s best interests , Virginiaimplausibly relied on this Court’s landmark racialequality ruling to defend a law grounded in theperceived racial inferiority of blacks. Brief ofAppellee, Loving v. Virginia at 35, 388 U.S. 1(1967).

Finally, Virginia also raised eugenic justi-fications for its antimiscegenation law. Its brief inLoving, quoting a 1959 opinion by the LouisianaSupreme Court, claimed “a state statute whichprohibits intermarriage or cohabitation betweenmembers of different races . . . falls squarelywithin the police power of the state, which has aninterest in maintaining the purity of the races andin preventing the propagation of half -breedchildren.” Id. (quoting State v. Brown, 108 So. 2d233, 234 (La. 1959)).

In sum, the history of antimiscegenation laws inthis country is littered with efforts to defend thoselaws as benefic ial to society because theypurportedly advanced the well-being of children.Those ef forts were frequently supported bypseudoscientific claims in an effort to give thepolicies a veneer of empiricism.

To assess the justifications advanced to supportthe class-based marital exclusion at issue on thisappeal, this Court should note that efforts todefend antimiscegenation laws have failed the testof time. Indeed, this Court in Loving saw throughsuch efforts. Antimiscegenation laws, this Court

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concluded, were patently unconstitutionalbecause—rather than promoting the welfare ofsociety or of children—they were “measuresdesigned to maintain White Supremacy.” Loving,388 U.S. at 11 (footnote omitted).

II. LAWS PROHIBITING DISABLED INDIVI-DUALS FROM MARRYING WERE JUSTI-FIED BY PSEUDOSCIENTIFIC ANDPSEUDOEMPIRICAL CLAIMS ABOUTSOCIAL AND CHILD WELFARE

Statutes prohibit ing cognit ively disabledindividuals from marrying were first enacted atthe end of the nineteenth century. Supportersdefended them by claiming they optimized humanreproduction and minimized the chances childrenwould develop physical and psychologicaldeficiencies.

During the first half of the nineteenth century,there was a prevai l ing understanding thatmentally disabled individuals could lead happyand productive lives through treatment and carein specialized institutions (i.e., asylums). MichaelGrossberg, Guarding the Altar: PhysiologicalRestrictions and the Rise of State Intervention inMatrimony, 26 Am. J. Legal Hist. 197, 219 (1982).But in the second half of the nineteenth century,the eugenic notion of improving the human raceby discouraging procreation among certain classesof individuals took hold among a growing numberof policymakers and experts. This drove a shiftfrom treating mental illness to preventing thebirth of chi ldren with cognit ive and otherdisabilities. Id.

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One way to achieve this goal was by forciblysterilizing those deemed “feebleminded.” Seegenerally Paul A. Lombardo, Three Generations,No Imbeciles: Eugenics, The Supreme Court, andBuck v. Bell (2008). Those who embraced eugenicsalso came to see marriage bans as a way ofavoiding the social costs associated with the birthof mentally disabled children. Michael Grossberg,Guarding the Altar, at 219 (“Stringent and well-enforced marriage standards for conjugal fitnessbecame one widely advocated method ofintervening in the reproductive process to preventthe birth of feebleminded children.”). Put starklyby one constitutional scholar in 1886, “if the bloodof either of the parties to a marriage is taintedwith insanity there is imminent danger of itstransmission to the offspring, and through theprocreation of imbecile children the welfare of thestate is more or less threatened.” Id. (quotingChristopher Tiedeman, A Treatise on theLimitations of the Police Power in the UnitedStates 536 (1886)).

The first law specifically aimed at excluding theso-called feebleminded from marriage was acriminal statute enacted by the Connecticutlegislature in 1896. That law prohibited themarriages of epileptics, “imbeciles,” and the“feebleminded.” Robert J. Cynkar, Buck v. Bell:“Felt Necessities” v. Fundamental Values , 81Colum. L. Rev. 1418, 1432 (1981). The legislationonly applied if the female partner was youngerthan forty-five, making clear its procreativeconcerns. See id. Several states, including Kansas,Michigan, New Jersey, and Ohio, soon adoptedsimilar statutes. Grossberg, Guarding the Altar,at 221. Two states, South Dakota and Nebraska,

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were even more draconian: they required allmentally disabled people to register with the Stateand prohibited them from marrying unless one ofthe wedding partners was infertile. Edward J.Larson, Sex, Race, and Science: Eugenics in theDeep South 22 (1995).

As with race-based marital restrict ions,supporters of the disability marriage bans tried tolegitimate them by pointing to “scientific” claimsthat were actual ly expressions of invidiousprejudice against the disabled. For instance, asupporter of these bans wrote in the ABA Journalin 1923 that they were “based not on historicalrules . . . but on scientific facts. [They are]directed against two evils, the bringing into theworld of children with hereditary taints and theprotection of the public health by preventing thespread of disease through marriage.” J .P.Chamberlain, Eugenics and Limitations ofMarriage, 9 A.B.A. J. 429, 429 (1923).

Many legal commentators in the first decades ofthe twentieth century agreed that the statepossessed an expansive authority to imposemarital restrictions to promote the public’s safetyand health. As one author explained in the YaleLaw Journal in 1915, marriage is “a matter ofgeneral or common right, [and as such] is so firmlybound up with the very life of the state and withits social, moral and economic welfare as to bedistinctively and preëminently within the policepower.” Edward W. Spencer, Some Phases ofMarriage Law and Legislation from a Sanitaryand Eugenic Standpoint, 25 Yale L. J. 58, 64(1915). This power, the author added, unques-tionably permitted the government to legislate for

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“the protection of the public or posterity through theprevention of diseased or degenerate offspring.” Id.

Some courts in the early twentieth centuryaccepted the c laims made by supporters ofdisabi l i ty marriage bans. For example, theConnecticut Supreme Court , in a 1905 caseinvolving the application of the ban to an epilepticman who attempted to marry, explained “thatepilepsy is a disease of a peculiarly serious andrevolting character, tending to weaken mentalforce, and often descending from parent to child,or entailing upon the offspring of the sufferersome other grave form of nervous malady, is amatter of common knowledge, of which courts willtake judicial notice.” Gould v. Gould, 61 A. 604,604–05 (Conn. 1905). The court concluded thestatute’s objectives were reasonable because thelaw applied to “a class [of people] capable ofendangering the health of families and addinggreatly to the sum of human suffering.” Id. at 605.

This reasoning, of course, has been entirely repu-diated today. Not only does forced sterilizationraise constitutional issues, see Skinner v .Oklahoma, 316 U.S. 535 (1942), but this Court hasmade clear that people with disabilities haveconstitutional and statutory rights that protectthem from invidious discrimination. See, e.g.,Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581,600 (1999) (holding the unjustified segregation ofthe mentally disabled in government facilitiesviolates the American with Disabilities Act);Cleburne v. Cleburne Living Center, 473 U.S. 432,448–49 (1985) (holding that treating the disabledon the basis of prejudice and fear violates theEqual Protection Clause). Courts today would

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reject the pseudoscientific arguments about thewell-being of society and children used in the pastby defenders of disability marriage bans.

The disability marriage bans are another exampleof the rare, but deeply troubling, ef forts inAmerican history to deny an entire class of peoplethe opportunity to marry based on pseudoscien-tific claims about how best to promote familyoptimality, child welfare, and the social good.

Like the history of race-based maritalrestrictions, this history should influence theCourt’s assessment of the arguments advanced tosupport the class-based marital exclusion at issuehere. With passing time, we see what should havebeen clear when the disability marriage bans wereenacted: the effort to prevent cognitively disabledindividuals from marrying reflected invidiousprejudices and a fai lure to accept the equaldignity of a class of citizens. The effort was not, assupporters claimed, about promoting the welfareof society and children.

III. LEGAL DISCRIMINATION AGAINSTNONMARITAL CHILDREN WAS JUS-TIFIED BY PSEUDOSCIENTIFIC ANDPSEUDOEMPIRICAL CLAIMS ABOUTSOCIAL AND CHILD WELFARE

Marital laws that have purportedly sought topromote the social good by addressing procreativeand child welfare considerations have not beenlimited to outright bans. Those considerations alsoplayed crucial roles in defending lawsdisadvantaging children born outside marriage.

The American colonies followed English law indistinguishing between children born in wedlock,

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who were “legitimate” and could inherit propertyfrom their parents, and children born outsidemarriage, who were “illegitimate” and could notinherit from anyone. Michael Grossberg,Governing The Hearth: Law and the Family inNineteenth-Century America 197–98 (1988). Achild born out of wedlock was considered “filiusnullius,” the child and the heir of no one. Id. Incolonial America, as in England, the parents of“illegitimate” children (mothers, in particular)were subject to punishment, including fines,imprisonment, and even public whippings, forwhat society deemed their sexual sins. John Witte,Jr . , The Sins of the Fathers : The Law andTheology of Illegitimacy Reconsidered 139 (2009).

The nineteenth century saw legal reforms aimedat reducing the number of so-called illegitimate(hereafter “nonmarital” ) chi ldren and atmitigating some of their legal disabi l i t ies .Although English law did not al low for thelegitimation of children through the parents’ sub-sequent marriage or the fathers’ acknowledgmentof paternity, some American states beginning inthe early 1800s enacted laws providing one or bothavenues to legitimation. Grossberg, Governing theHearth 200–07. The advent of common lawmarriages and the judicial application of a strongpresumption that children of married women werealso the chi ldren of their husbands furtherreduced the number of nonmarital children. Id.Some states also began allowing nonmaritalchildren to inherit from their mothers (but nottheir fathers). Id.

The push to reform laws affecting nonmaritalchildren stalled, however, during the second halfof the nineteenth century. As the legal historian

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Michael Grossberg explains, “the post-1850American obsession with improving family lifereinvigorated the use of the law to separateillegitimate from legitimate offspring . . . . Thebel ief that discriminatory laws reinforcedlegitimate families and deterred spurious birthinhibited [additional] reform efforts.” Id. at 228–29.

By the turn of the twentieth century, prevailingunderstandings of “illegitimacy” began to reflecteugenic ideas, in particular the notion that thephenomenon was largely caused by the mental“defective[ness]” and “feeblemindedness” of singlemothers. See, e.g., Percy Gamble Kammerer, TheUnmarried Mother: A Study of Five HundredCases (1918); Emma O. Lundberg, Children ofI l legit imate Birth and Measures for TheirProtection (Children’s Bureau, U.S. Dep’t of Labor,Bureau Publication No. 166, 1926).

Many supporters of treating nonmaritalchildren differently also claimed the discrimina-tion was necessary to promote social welfare andfamily optimality. The prominent sociologistKingsley Davis articulated this view in 1939 whenhe wrote:

[T]he function of reproduction can becarried out in a socially useful manneronly if it is performed in conformity withinstitutional patterns, because only bymeans of an institutional system canindividuals be organized and taught to co-operate in the performance of this long-range function, and the function beintegrated with other social functions.The reproductive or familial institutionsconstitute the social machinery in terms

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of which the creation of new members issupposed to take place. The birth ofchildren in ways that do not fit into thismachinery must necessarily receive thedisapproval of society, else the institu-tional system itself, which depends uponfavorable attitudes in individuals, wouldnot be approved or sustained.

Kingsley Davis , Il legit imacy and the SocialStructure, 45 Am. J. Soc. 215, 219 (1939). Davisand many others defended the unequal legaltreatment of nonmarital children as a necessarymeans to promote what they considered best forsociety and for children.

Although some states, around the middle of thetwentieth century, enacted additional reforms toreduce the number and impact of legal disabilitieson nonmarital chi ldren (by, for example,permitt ing them to inherit from both theirmothers and fathers), many laws that deniedbenefits to children born outside of marriage werestill on the books by the 1960s. See generallyHarry D. Krause, Equal Protect ion for theIllegitimate, 65 Mich. L. Rev. 477 (1967). In 1967,this Court agreed to hear a challenge to one ofthose laws: Louisiana’s refusal to allow nonmari-tal children to sue in tort for the wrongful deathsof their mothers, a right the State provided to mari-tal children. Levy v. Louisiana, 391 U.S. 68 (1968).

In its brief to this Court in Levy, the Stateclaimed it was appropriate to impose unequalburdens on nonmarital children to achieve itsunderstanding of what constituted family optimal-ity: “superior rights of legitimate offspring areinducements or incentives to parties to contract

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marriage, which is preferred by Louisiana as thesetting for producing offspring.” Brief of AttorneyGeneral, State of Louisiana, Levy v. Louisiana at4–5, 391 U.S. 68 (1968).

This Court in Levy rejected the State ’sreasoning, concluding that treating nonmaritalchildren dif ferently was a form of invidiousdiscrimination. Levy , 391 U.S. at 71–72. TheCourt pointed out that those children, when theybecame adults, had the same legal obligations aseveryone else, and yet the State denied themrights and benefits enjoyed by their fe l lowcit izens. Such di f ferential treatment wasprohibited by the constitutional mandaterequiring equal protection for all. Id.

Three years after Levy, the constitutionality ofanother Louisiana statute, one that precludednonmarital children from inheriting from theirfathers if “legitimate” children also claimed aninheritance, reached this Court in Labine v.Vincent, 401 U.S. 532 (1971). Louisiana once againargued the differential treatment of nonmaritalchildren was necessary to promote marriage andthe nuclear family. Brief of Attorney General forthe State of Louisiana at 3, Labine v. Vincent, 401U.S. 532 (1971) (c laiming laws that “ favorlegitimate children over illegitimate children . . .strengthen the idea of a family unit to discouragethe promiscuous bearing of chi ldren out ofwedlock. Whether this is good or bad it seems is asociological question and not a legal one.”). Lawsthat denied benefits to nonmarital children, theState explained, “are based on the propositionthat the family is a critical unit of society.” Id. at

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4. The government added such statutes “encour-age marriage and family ties.” Id.

The year after Labine, this Court in Weber v.Aetna Casualty & Surety Company addressed theconstitutionality of a statute that denied workers’compensation benefits to the nonmarital childrenof employees. Weber v. Aetna Casualty & SuretyCo., 406 U.S. 164 (1972). In Weber, this Court heldthat whatever interests the government mighthave in promoting marriage and discouraging thebirth of nonmarital children, those interests werenot advanced by denying workers’ compensationbenefits to those children. The Court found itirrational to believe people would “shun illicitrelations” because their children might somedaybe denied access to particular benefits. Id. at 173.

After Weber, governments ceased defending thedifferential treatment of nonmarital childrenbased on the asserted need to encourage pro-creation within marital families and to discourageother family forms. Instead, government defen-dants focused on narrower justifications for thedifferential treatment, including the adminis-trative diff iculties of establishing paternityoutside of marriage and the need to discouragespurious claims for government benefits. See, e.g.,Lalli v. Lalli, 439 U.S. 259, 268 (1978) (notingthat the State has a considerable interest arisingfrom the “peculiar problems of proof” in paternalinheritance cases involving nonmarital children);Jimenez v. Weinberger , 417 U.S. 628, 633–34(1974) (rejecting government defense that denyingbenefits to nonmarital chi ldren of disabledparents born after the onset of disability wasjustified to prevent spurious claims). Government

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defendants had to narrow their justifications forthe differential treatment of nonmarital childrenbecause this Court grew increasingly skeptical ofefforts to deny benefits to people because of thecircumstances of their birth. See, e.g., Clark v.Jeter, 486 U.S. 456 (1988); New Jersey WelfareRights Org. v. Cahill, 411 U.S. 619 (1973); Gomezv. Perez, 409 U.S. 535 (1973).

IV. OPPONENTS OF MARRIAGES BY SAME-SEX COUPLES CONTINUE TO MAKEPSEUDOSCIENTIFIC AND PSEUDO-EMPIRICAL CLAIMS ABOUT SOCIALAND CHILD WELFARE

Although efforts to justify exclusionary maritalpolicies with pseudoscientific claims have longbeen discredited, such efforts are not a thing ofthe past. Several opponents of marriage equalityin the case below adopted precisely this approach.The Catholic Conference of Ohio, for instance,suggested that “a large and growing body ofresearch” shows how children need both a maleand a female parent. Brief for the Cathol icConference of Ohio as Amici Curiae SupportingAppellants at 9, DeBoer v. Snyder, 772 F.3d 388(6th Cir. 2014) (No. 14-3464). In support of thisclaim, the marriage equality opponents quoted a1996 study that did not study families headed bysame-sex couples ( id. ; David Popenoe, LifeWithout Father: Compelling New Evidence ThatFatherhood & Marriage Are Indispensable For TheGood Of Children & Society 146 (1996)); a 2002study whose authors deny that conclusions onmarriage equality can be drawn from its findings(id.; Kristin Anderson Moore et al., Child Trends,Marriage From a Child’s Perspective: How Does

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Family Structure Affect Children and What CanWe Do About I t? 1–2 (2002) , available athttp://www.childtrends.org/files/MarriageRB602.pdf); and a 2012 article by a political philosopherconcerned with marriage equality in the context of“John Rawls’s political liberalism and its ideal ofpublic reason” (id.; Matthew B. O’Brien, WhyLiberal Neutrality Prohibits Same-Sex Marriage:Rawls, Political Liberalism, and the Family, 2012Brit. J. Am. Leg. Stud. 411)). Marriage equalityopponents presented these as exemplars of the“large and growing body of research” on thesubject, id., when in fact the research shows theprecise opposite of their conclusions. See generallyCarlos A. Ball, Same-Sex Marriage and Children:A Tale of History, Social Science, and Law (2014).

The Michigan Catholic Conference also invokedscience to justify banning marital unions by same-sex couples. But its brief cited the same 2002study on which its Ohio counterparts relied, againcontrary to its authors’ insistence that the studytells us nothing about outcomes for children ofsame-sex couples. Brief for Michigan CatholicConference as Amici Curiae SupportingAppellants at 15, DeBoer v. Snyder, 772 F.3d 388(6th Cir. 2014) (No. 14-1341). The brief furthercited a century-old pamphlet titled Marriage andDivorce. Id. This text—whose primary aim is towarn against the evils of divorce, even in cases ofadultery—describes how a “chi ld needs thefather’s masculine influence, and the mother’sfeminine influence, always together, the twostreams uniting to pour their fructifying influencethrough the child’s life into the life of humanity.”Id. But the quoted author (an ethicist andreligious leader) cites no sources, leaving this

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“fructifying influence” no better grounded than ajudge’s “daily observations” of the supposeddeficiencies of interracial children.

Marriage equality opponents repeat historical,pseudoscientific assumptions of social welfare andfamily optimality to justi fy an exclusionarymarital policy. Such opponents denigrate relianceon the “shifting sands of social science” where itsuits them, but invite this Court to uncriticallyaccept “scientific” postulates analogous to thosediscredited in modern legal contexts such as thoseinvolving marriage bans across racial lines, lawsprohibiting individuals with disabilities frommarrying, and the imposition of legal burdens onnonmarital children. Brief for Public Advocate ofthe United States et al . as Amici CuriaeSupporting Appellants at 5, DeBoer v. Snyder, 772F.3d 388 (6th Cir. 2014) (No. 14-1341). This Courtshould reject them here as well.

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CONCLUSION

In the cases of both race-based marital restric-tions and the differential treatment of nonmaritalchildren, this Court eventually rejected efforts todefend discriminatory marriage laws and policiesbased on the supposed pursuit of social welfareand family optimality. Those efforts frequentlywere grounded in purported “scientific” facts relat-ing to the well-being of society and children. Butthis Court ultimately saw them for what they were:constitutionally impermissible ways of privilegingthe rights and interests of some over those ofothers.

Although class-based marital exclusions havebeen relatively rare in American history, theyusually have shared one characteristic: Pro-ponents of those laws have attempted to justifythem by making pseudoscientific claims about howbest to maximize social welfare and child well-being. The courts, and the broader society, eventu-ally came to understand that such efforts wereconstitutionally impermissible, morally unaccept-able, and empirically indefensible.

The same likely will be true when the judgmentof history regards the pseudoempirical claimsmade by those who today defend the categoricalexclusion of same-sex couples from the institutionof marriage based on the alleged need to protectsociety and children from harm. The troublingways class-based marital policies and restrictionswere defended in the past should make this Courthighly skeptical of the effort to deny same-sexcouples the opportunity to marry, purportedly topromote the well-being of society and children.

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The lesson of the history explored in this brief isthat the empirical-sounding, pseudoscientificassertions of jurists and counsel in defendingmarital bans in one era often are revealed asinvidious and indefensible discrimination overtime. The decisions below should be reversed.

Respectfully submitted,

PAUL J. HALLCounsel of Record

JEFF DEGROOTGEORGE GIGOUNASJESSE MEDLONGDLA PIPER LLP (US)555 Mission Street, Suite 2400San Francisco, CA 94105-2933(415) [email protected]

Attorneys for Amici Curiae

March 6, 2015

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