Download - 13-4178 Amicus Brief of State of Michigan
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
1/28
No. 13-4178; 14-5003 & 14-5006
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
DEREK KITCHEN, ET AL.,
Plaintiffs-Appellees,
v.
GARY R. HERBERT, ET AL.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Utah (No. 2:13-cv-00217)
MARY BISHOP, ET AL.,Plaintiffs-Appellees,
v.
SALLY HOWE SMITH, ET AL.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Oklahoma (No. 4:04-cv-00848)
BRIEF OFAMICUS CURIAE STATE OF MICHIGAN IN
SUPPORT OF STATES OF OKLAHOMA AND UTAH
Bill Schuette
Michigan Attorney General
Aaron D. Lindstrom
Solicitor General
Co-Counsel of Record
B. Eric Restuccia
Deputy Solicitor GeneralAttorneys forAmicus Curiae
Department of Attorney General
P.O. Box 30212
Lansing, Michigan 48909
(517) 373-1124
Dated: February 10, 2014
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 1Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 1
Docket Reference Number: [10148389]
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
2/28
i
TABLE OF CONTENTS
Page
Table of Authorities .................................................................................... iiStatement of Interest ofAmicus CuriaeState of Michigan ..................... 1Introduction ................................................................................................ 2
Argument .................................................................................................... 5I. The debate over the definition of marriage is ongoing and
should be left to the people of the States. ........................................ 5II. Voters could reasonably conclude that a family with both a
mom and a dad is the ideal setting in which to raise
children. ............................................................................................. 7A. Marriage is rooted in the unique capacity of the union
of one man and one woman to bear children. ......................... 8B. The definition of marriage enables both a mom and a
dad to serve as role models for their children....................... 10C. Marriage enables the parents to have a biological
relationship with their children. ........................................... 13III. Reaffirming the definition of marriage, which excludes other
relationships, is reasonable and does not denigrate anyone. ........ 15A. Other relationships do not share the unique
characteristics of marriage. ................................................... 16B. Upholding marriage is not a matter of animus. ................... 18
Conclusion and Relief Requested ............................................................. 21Certificate of Compliance ......................................................................... 22Certificate of Service ................................................................................ 23Certificate of Digital Submission ............................................................. 24
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 2Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 2
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
3/28
ii
TABLE OF AUTHORITIES
Page
CasesAndersen v. King County,
158 Wash. 2d 1 (2006) ....................................................................... 9, 13
Bishop v. Smith,
___ F. Supp. 2d ___; 2014 WL 116013 (N.D. Okla. 2014) ................... 19
Bobby v. Dixon,
132 S. Ct. 26 (2011) ............................................................................... 12
Dixon v. Houk,627 F.3d 553 (6th Cir. 2010) ................................................................. 11
Duren v. Missouri,
439 U.S. 357 (1979) ............................................................................... 11
Hernandez v. Robles,
7 N.Y.3d 338 (2006) ..................................................................... 9, 10, 14
In re Marriage of J.B.and H.B.,
326 S.W.3d 654 (Tx. Ct. App. 2010) ...................................................... 11
In re Winship,
397 U.S. 358 (1970) ............................................................................. 5, 6
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Hawaii 2012) ................................................ 10
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................... 18
Lewis v. Harris,
875 A.2d 259 (N.J. Sup. Ct. 2005)......................................................... 19
Lofton v. Secy of Dept of Children & Family Services,
358 F.3d 804 (11th Cir. 2004) ............................................................... 12
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 3Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 3
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
4/28
iii
Maher v.Roe,
432 U.S. 464 (1977) ................................................................................. 7
Maynard v. Hill,
125 U.S. 190 (1888) ............................................................................... 15
Sissung v. Sissung,
31 N.W. 770 (Mich. 1887) ........................................................................ 8
State v. Fry,
4 Mo. 120 (1835) ...................................................................................... 8
United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................... 2, 3, 5
Statutes10 Okla St. Ann. 7503-1.1 ..................................................................... 14
MICH.COMP.LAWS 710.24 ..................................................................... 14
Utah Code 78B-6-117(2), (3) .................................................................. 14
RulesFED. R. APP. P. 29(a) ................................................................................... 1
Constitutional ProvisionsMICH.CONST. art. I, 25 ............................................................................ 1
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 4Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 4
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
5/28
1
STATEMENT OF INTEREST OF
AMICUS CURIAESTATE OF MICHIGAN
Like voters in a majority of States, the people of Michigan define
marriage as the union between one man and one woman. Michigans
citizens recently reaffirmed this definition, which dates back to 1846, by
amending the state constitution in 2004. RS 1846, Ch. 83, 1; MICH.
CONST. art. I, 25.
The people of Oklahoma and Utah have also reaffirmed their long-
held understanding of marriage by voting on the issue. But the federal-
court decisions below nullified this democratic process, taking this
fundamental policy decision away from ordinary citizens by concluding
that the peoples view that a child benefits from having both a mother
and a father is irrational.
The State of Michigan files to make three points: (1) the people of
the States, not federal courts, should decide the definition of marriage;
(2) marriage encourages the commonsense point that it benefits a child
to have a mom and a dad; and (3) this time-honored definition does not
disparage anyone but is based on a conclusion about raising children.1
1This brief is being filed pursuant to Federal Rule of Appellate
Procedure 29(a).
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 5Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 5
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
6/28
2
INTRODUCTION
The current debate on marriage presents different ways of under-
standing what marriage should be. People of good will may reasonably
disagree about the issue. It is for precisely that reason that the debate
should continue and be resolved through the democratic process. This
Court should not overturn the peoples decision and impose its own
vision, thereby removing the issue from the democratic process and
effectively silencing those who support marriage between a man and a
woman. The views of the people of the Statessome of their most
deeply held and reveredare reasonable ones. Voters may have pre-
served the definition of marriage on the reasonable belief that children
are better off with both a mom and a dad. And even if these views may
be debated, they cannot rightly be dismissed as irrational or bigoted.
The judgment of the people on these questions is particularly
compelling because marriage falls within the States dominion. The
area of domestic relations has long been regarded as a virtually
exclusive province of the States. Indeed, the Supreme Court just
affirmed this long-established rule in United States v. Windsor, 133 S.
Ct. 2675 (2013), recognizing that [b]y history and tradition the
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 6Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 6
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
7/28
3
definition and regulation of marriage . . . has been treated as being
within the authority and realm of the separate States. Id. at 268990.
Given the States authority over marriage, federal courts should not
easily set aside the peoples will.
The laws reaffirming the definition of marriage here rest on the
fact that no other relationship is like that of the union of one man and
one woman. It is uniquely suited for the creation and rearing of
children. Only marriage reflects the natural capacity of this
relationship to bear children, to provide a role model of both manhood
and womanhood to the children, and to enable any children born of the
marriage to have a biological relationship with each parent. The point
is a modest one: it is reasonable to conclude that, all things being
equal, it is better for a child to be raised by the childs mom and dad.
This definition does not disparage or demean other important
relationships, including ones in which children are raised outside the
umbrella of marriage. It simply recognizes that the justification for
legally recognizing marriage in the first place is that it promotes the
best interests of children. The law encourages citizens to enter into
marriage, fostering that ideal setting for raising children.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 7Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 7
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
8/28
4
This definition has existed from time immemorial and is not
rooted in animus toward same-sex couples or even in an unwarranted
stereotype that same-sex couples cannot provide a loving setting for
children. They clearly can. Rather, the definition simply acknowledges
the reality that same-sex relationships are different because they lack
the natural capacity to bear children and the ability to provide
biologically connected role modelsa mom and a dadto the children.
It is rational to define marriage based on the relationship out of which
children are ordinarily born. Every child has a mom and a dad. The
definition of marriage gives legal form to this reality.
Marriage, if it is to have any meaning, has to have a definition.
Every relationship between consenting adults does not constitute a
marriage, even where the adults are raising children together. But
courts should leave the contentious social issue of marriage to the
democratic process rather than cutting short the peoples deliberations.
This is the exact sort of decision that a democracy entrusts to the
people.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 8Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 8
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
9/28
5
ARGUMENT
I. The debate over the definition of marriage is ongoingand should be left to the people of the States.
Since this nations founding, the institution of marriage and its
legal parameters have been within the authority and realm of the
separate States. Windsor, 133 S. Ct. at 2690. Citizens in States
around the nation are currently engaging in a robust debate on whether
marriage should be extended to same-sex couples. This debate should
be allowed to play out in our democratic institutions; it should not be
short-circuited by the courts. When this Court assumes for itself the
power to declare any lawstate or federalunconstitutional because it
offends [a] majority[ ] [of the courts] own views of what is fundamental
and decent in our society, our Nation ceases to be governed according to
the law of the land and instead becomes one governed ultimately by
the law of the judges. In re Winship, 397 U.S. 358, 384 (1970). (Black,
J., dissenting). The deeply rooted definition of marriage should be left
to the political arena where the people can decide.
An open democratic process ensures full vetting of matters
involving the ideal societal structure. Federal courts should not halt
these democratic principles by judicial fiat. And any social policy
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 9Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 9
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
10/28
6
regarding definitions of marriage should come by way of democratic
processes, not judicial activism.
As Justice Black recognized, perhaps the most fundamental
individual liberty of citizens is the right of each person to participate in
the self-government of their society. In re Winship, 397 U.S. at 385
(Black, J., dissenting). The people . . . may of course be wrong in
making . . . determinations [of fairness], but the right of self-
government that our Constitution preserves is just as important as any
of the specific individual freedoms preserved in the Bill of Rights. Id.
State laws necessarily promote a vision of what is the ideal. And
different communities will have different visions of what constitutes the
ideal. The view in some communities is that marriage is only about
recognizing the emotional fulfillment of adults, separate from
encouraging a legal attachment between children and their biological
parents. The view in others is that sexual identity is inconsequential in
marriage, rendering mothers and fathers entirely interchangeable. And
all citizens are free to argue about the current understanding of the
ideal of marriage. People of good will may genuinely and reasonably
disagree about the issue without holding any sort of discriminatory
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 10Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 10
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
11/28
7
animus. The democratic processes of this country are ill-served by the
judiciary stepping in and branding one side of the debate as irrational.
To arrogate this decision to themselves, the courts will dismiss some of
the most ancient and cherished beliefs of half of the country as animus.
Democracy should not work that way.
It is well settled that there is a basic difference between direct
state interference with a protected activity and state encouragement of
an alternative activity consonant with legislative policy. Maher v.Roe,
432 U.S. 464, 475 (1977). By preserving the definition of marriage, the
States here do not interfere with the right of adults to commit each
other to an exclusive, loving relationship. But the people of Oklahoma
and Utahlike the citizens in a majority of Stateshave established
marriage between a man and a woman as the ideal setting for the
raising of children. There is nothing unconstitutional about this
conclusion.
II.
Voters could reasonably conclude that a family with both amom and a dad is the ideal setting in which to raise
children.
The primary justification for marriage historically has been for
the procreation and rearing of children. SeeSissung v. Sissung, 31
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 11Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 11
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
12/28
8
N.W. 770, 772 (Mich. 1887) ([T]he first purpose of matrimony, by the
laws of nature and society, is procreation.). Consequently, marriage
has always been understood to be between one man and one woman,
throughout the States from the beginning, because this was the
common-law understanding of marriage. E.g., State v. Fry,4 Mo. 120,
126 (1835) (quoting Sir Francis Bacon, 6 Bacon Abr. 523, 530 (mar-
riage is a compact between a man and a woman for the procreation and
education of children)). Underlying this definition of marriage is the
basic point that marriage between two persons of the opposite sex has
certain characteristics that make it ideal for the raising of children.
A. Marriage is rooted in the unique capacity of the unionof one man and one woman to bear children.
There are two sexes, each necessary for the procreation of
children. A man and a woman generally have the inherent ability
together to produce a child biologically connected to both parents. This
unique capacity to conceive a child is based on their complementarity in
a conjugal union. There is, of course, no obligation to have children in
marriage. But there is no dispute that it is through the sexual union of
a man and a woman that the vast majority of children are created.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 12Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 12
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
13/28
9
This fact has been true from the beginning of time. Thus, the
States decision to solemnize this reality by recognizing the unique
capacity of a man and woman to produce a child is a reasonable one. By
defining marriage as between one man and one woman, the State
elevates this union, identifying it as the ideal standard for families.
Case law across the country has identified this dynamic as one
reflecting the binary nature of the human procreation. SeeAndersen
v. King County,158 Wash. 2d 1, 54 (2006) (Johnson, J., concurring in
judgment) (The unique and binary biological nature of marriage and
its exclusive link with procreation and responsible child rearing has
defined the institution at common law and in statutory codes and
express constitutional provisions of many states.); Hernandez v. Robles,
7 N.Y.3d 338, 370 (2006) (Graffeo, J., concurring) (The binary nature of
marriageits inclusion of one woman and one manreflects the
biological fact that human procreation cannot be accomplished without
the genetic contribution of both a male and a female.). In other words,
sexual complementary is an irreducible difference; no other
arrangement has the capacity to create a new life, no matter how
committed or loving the relationship.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 13Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 13
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
14/28
10
Defining marriage as it has been defined throughout history
therefore reflects a basic reality about how children are createdin a
relationship between a man and a woman. Id.
B. The definition of marriage enables both a mom and adad to serve as role models for their children.
Historically, marriage has also provided a male and female role
modela mom and a dadfor any children born of the marriage. This
fact again is rooted in the reality of family life.
As one of their key family roles, moms and dads educate their
children and provide them with tools that assist them in reaching
adulthood. Specifically, moms and dads together teach their boys in
their transition to manhood and their girls in reaching womanhood.
And voters could reasonably believe that children benefit from having
both a male and a female example to grow up with. SeeHernandez,7
N.Y.3d at 359 (plurality opinion) (Intuition and experience suggest
that a child benefits from having before his or her eyes, every day,
living models of what both a man and a woman are like.); accord
Jackson v. Abercrombie,884 F. Supp. 2d 1065, 1116 (D. Hawaii 2012).
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 14Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 14
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
15/28
11
In the absence of both a man and a woman, the child is missing a role
model:
The state also could have rationally concluded that childrenare benefited by being exposed to and influenced by the
beneficial and distinguishing attributes a man and a woman
individually and collectively contribute to the relationship.
[In re Marriage of J.B.and H.B., 326 S.W.3d 654, 678 (Tx.
Ct. App. 2010).]
Women and men bring unique gifts to parenting, gifts that are
different and complementary. As Justice Ginsburg explained in a
different context, Yes, men and women are persons of equal dignity
and they should count equally before the law but they are not the same.
There are differences between them that most of us value highly[.] Tr.
of Oral Arg. inDuren v. Missouri, 439 U.S. 357 (1979).
Moreover, having a dad who serves as a male role model for a
young boy in becoming a man is particularly important, as is having a
mom to serve as a female role model for a young girl. This concept
appears in cases involving divorce, termination of parental rights, or
even in evaluating mitigating factors in the sentencing phase of a
criminal case. See, e.g.,Dixon v. Houk,627 F.3d 553, 568 (6th Cir.
2010) (approvingly identifying lack of father figure as a mitigating
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 15Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 15
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
16/28
12
factor for punishment from previous case), revd on other grounds,
Bobby v. Dixon,132 S. Ct. 26 (2011).
The conclusion that it benefits a child to have both a male and
female role model in the childs transition to adulthood is a reasonable
one. SeeLofton v. Secy of Dept of Children & Family Services, 358 F.3d
804, 819822 (11th Cir. 2004) (It is chiefly from parental figures that
children learn about the world and their place in it, and the formative
influence of parents extends well beyond the years spent under their
roof, shaping their childrens psychology, character, and personality for
years to come.). The point is that having both a mom and a dad is
beneficial for the raising of children.
To be sure, single mothers, single fathers, and same-sex couples
can be loving and nurturing parents, rearing happy, well-adjusted
children, while married, opposite-sex couples can be inadequate
parents. But there is nothing unconstitutional about a State choosing
to honor the mother-father-child relationship as an ideal family setting.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 16Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 16
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
17/28
13
C. Marriage enables the parents to have a biologicalrelationship with their children.
For any child born from the marital relationship between a man
and a woman, the child is the offspring of each parent. This fact creates
a bond between a child and the childs parents. SeeAndersen,158
Wash. 2d at 37 (Heterosexual couples are the only couples who can
produce biological offspring of the couple). The parents and the
children share not only a legal identity as a family but also a physical
affinity. In this way, the biological parents of a child are also the legal
parents.
In contrast, for same-sex couples, their conjugal union will never
yield a child. For any children, there will always be at least one
biological parent who is outside of the marital union, and there always
will be at least one legal parent who is not a biological one. See id.
Defining marriage to include a relationship that is not biologically
capable of producing children separates the marital sexual union from
the procreation of children. Same-sex couples must generally rely on
some artificial intervention for the conception of any child, necessarily
separating the child from one or both biological parents. Id.at 983
(single-sex couples raise children and have children with third party
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 17Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 17
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
18/28
14
assistance or through adoption). In contrast, children routinely result
from the conjugal relationship between husband and wife. Because this
can never be true for same-sex couples, they are differently situated.
Again, this conclusion does not disparage the ability of same-sex
couples or others to provide loving homes or to establish a stable,
nurturing setting for children. The point is that the citizens of a State
may elect to encourage the ideal setting by providing legal support for
it, upholding it as the archetype for all families, and fostering it as the
optimal arrangement. The State may reasonably conclude that it is
better, other things being equal, for children to grow up with both a
mother and a father. Hernandez,7 N.Y.3d at 359 (plurality opinion).
This point is even more true where the parents are that childs
biological mother and father.
Of course, there are opposite-sex couples who are unable to have
children of their own and who adopt children. As in Michigan, see
MICH.COMP.LAWS 710.24, the laws of Oklahoma and Utah authorize
married persons or single adults to adopt children, but not two
unmarried persons. 10 Okla St. Ann. 7503-1.1; Utah Code 78B-6-
117(2), (3). This distinction reflects the fundamental difference between
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 18Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 18
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
19/28
15
a same-sex couple and a married man and woman seeking to adopt. As
explained above, the married couples reflect the complementarity of the
sexes and offer the role modeling helpful to the optimal raising of
children. And even the marriage of a man and woman who are unable
or unwilling to have children nevertheless reinforces the family ideal by
establishing an example for other couples of the opposite sex who will
have children.
The law does not require that a married couple intend to have
children or even that the couple have a sexual relationship for a couple
to enter the married state. But the interest of the citizenry in marriage
arises from the fact that children are ordinarily born from a
relationship between a man and a woman, and voters could reasonably
seek to encourage the ideal in the raising of these children.
III. Reaffirming the definition of marriage, which excludesother relationships, is reasonable and does not denigrate
anyone.
The definition of marriage as the union of one man and one
woman has its origin in the common law. It is the foundation of society.
Maynard v. Hill,125 U.S. 190, 211 (1888) (It is an institution, in the
maintenance of which in its purity the public is deeply interested, for it
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 19Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 19
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
20/28
16
is the foundation of the family and of society, without which there
would be neither civilization nor progress.).
Contrary to the conclusion of the federal district courts here, the
effort to reaffirm the definition of marriage is not based on animus
toward same-sex couples. It simply reflects an affirmative statement
about the best environment for raising children. In fact, the historic
definition of marriage as the union of one man and one woman long
precedes the entire debate on same-sex marriage, which has only arisen
in the last 50 years.
A. Other relationships do not share the uniquecharacteristics of marriage.
In contrast to same-sex relationships, the marriage relationship
reflects the inherent capacity of a man and a woman, based on the
complementarity of the sexes, to produce children. And in marriage
there is both a mother and a father to serve as role models for the
children, and the potential for the children to be the offspring of the
married couple. For same-sex couples, there is always an issue about
parentage. And there is always only one sex represented among the
parents. The decision of the citizens of Oklahoma, Utah, Michigan, and
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 20Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 20
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
21/28
17
other States to promote the ideal for families by recognizing only the
union of one man and one woman in marriage rests on the benefits this
relationship offers for children.
True, many traditional families fail to meet this ideal. And many
same-sex couples provide a nurturing and loving setting for children.
But this does not answer the point. The law serves the goal of
establishing ideal standards, encouraging the public to align themselves
to these archetypes. And the State may foster the ideal for children.
The question is whether it is reasonable to believe that these
attributes of marriage, unique to the marriage of one man and one
woman, further the end of providing the ideal setting for the raising of
children. From the beginning of recorded history, this relationship has
been the hallmark of family life. Until this past century, all children
were conceived in the relationship between a man and a woman, and
the law ratified and codified the reality of an institution already in
place. The fact that other committed same-sex adults may provide a
loving setting for children does not impeach this fact.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 21Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 21
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
22/28
18
B. Upholding marriage is not a matter of animus.The effort to reaffirm the definition of marriage is not based in
animus toward same-sex couples or individuals who experience same-
sex attraction. Every human life has inherent dignity and is of
immense worth. Rather, the reaffirmation is a policy decision that
expresses the electorates view about the ideal of family life. See
Lawrence v. Texas,539 U.S. 558, 585 (2003) (OConnor, J., concurring)
(Unlike the moral disapproval of same-sex relationsthe asserted
state interest in [Lawrence]other reasons exist to promote the
institution of marriage beyond mere moral disapproval of an excluded
group.). These affirmative reasons, as discussed above, support the
marriage laws of Oklahoma and Utah.
Historically, the primary competing understanding of family life
has been plural marriage. More than 40 countries currently permit
plural marriage. But excluding plural marriage does not imply animus
or bigotry against cultures that tolerate plural marriage. Instead, this
reaffirmation celebrates the virtues of the union of one man and one
woman in marriage; it does not condemn other relationships.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 22Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 22
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
23/28
19
Significantly, a rejection by this Court of the States definition of
marriage may require the acceptance of plural marriage. The
underlying rationale for the decisions below, after all, is that two adult
persons who are dedicated to one another and seek to raise a child
should be able to marry. See, e.g., Bishop v. Smith,___ F. Supp. 2d ___;
2014 WL 116013, *33 (N.D. Okla. 2014) (the Bishop couple has been in
a loving, committed relationship for many years and cannot be
excluded from the definition of marriage without a legally sufficient
justification.). But any number of adults can be committed to one
another and seek to raise children together. Once the courts reject a
States ability to promote the view that the ideal family structure
consists of a mother, father, and children, the reasoned ability to limit
marriage to two adults is weakened. Lewis v. Harris,875 A.2d 259, 277
(N.J. Sup. Ct. 2005) (Parrillo, J., concurring) (If, for instance, marriage
were only defined with reference to emotional or financial
interdependence, couched only in terms of privacy, intimacy, and
autonomy, then what non-arbitrary ground is there for denying the
benefit to polygamous or endogamous unions whose members claim the
arrangement is necessary for their self-fulfillment?).
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 23Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 23
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
24/28
20
In sum, a State may reasonably reserve marriage to one man and
one woman because of that relationships unique characteristics. This
union alone is inherently capable of producing life while also enabling
the married personsin the idealto have children who have a
biological relationship to each parent, who may then serve as role
models of both sexes for their children.
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 24Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 24
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
25/28
21
CONCLUSION AND RELIEF REQUESTED
This Court should reverse the decisions of the district courts below
and affirm the constitutionality of the marriage laws in Oklahoma and
Utah.
Respectfully submitted,
Bill Schuette
Michigan Attorney General
/s/ Aaron D. Lindstrom
Aaron D. Lindstrom
Solicitor General
Co-Counsel of Record
B. Eric Restuccia
Deputy Solicitor General
Assistant Attorneys General
Attorneys forAmicus Curiae
State of Michigan
P.O. Box 30212
Lansing, Michigan 48909
(517) 373-1124
Dated: February 10, 2014
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 25Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 25
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
26/28
22
CERTIFICATE OF COMPLIANCE
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed.
R. App. P. 29(d) because this brief contains no more than 7,000 words,
excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii). There are a total of 3,881 words.
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in a proportionally spaced
typeface using Word 2010 in 14 point Century Schoolbook.
/s/ Aaron D. Lindstrom
Aaron D. Lindstrom
Solicitor GeneralCo-Counsel of Record
Attorneys forAmicus Curiae
State of Michigan
P.O. Box 30212
Lansing, Michigan 48909
(517) 373-1124
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 26Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 26
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
27/28
23
CERTIFICATE OF SERVICE
I certify that on February 10, 2014, the foregoing document was
served on all parties or their counsel of record through the CM/ECF
system if they are registered users or, if they are not, by placing a true
and correct copy in the United States mail, postage prepaid, to their
address of record.
/s/ Aaron D. Lindstrom
Aaron D. Lindstrom
Solicitor General
Co-Counsel of Record
Attorneys forAmicus Curiae
State of Michigan
P.O. Box 30212
Lansing, Michigan 48909
(517) 373-1124
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 27Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 27
-
8/13/2019 13-4178 Amicus Brief of State of Michigan
28/28
CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing:
(1) all required privacy redactions have been made per 10thCir. R.
25.5;
(2) if required to file additional hard copies, that the ECF
submission is an exact copy of those documents;
(3) the digital submissions have been scanned for viruses with the
most recent version of a commercial virus scanning program, Symantec
Endpoint Protection 11.0 (February 9, 2014, r19) and according to the
program are free of viruses.
/s/ Aaron D. Lindstrom
Aaron D. Lindstrom
Solicitor General
Co-Counsel of Record
Attorneys forAmicus Curiae
State of Michigan
P.O. Box 30212
Lansing, Michigan 48909
(517) [email protected]
Appellate Case: 13-4178 Document: 01019200248 Date Filed: 02/10/2014 Page: 28Appellate Case: 13-4178 Document: 01019200300 Date Filed: 02/10/2014 Page: 28