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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 OF AMICUS 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 General Attorneys for Amicus Curiae Department of Attorney General P.O. Box 30212 Lansing, Michigan 48909 (517) 373-1124 Dated: February 10, 2014

Docket Reference Number: [10148389]

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TABLE OF CONTENTS Page Table of Authorities ....................................................................................ii Statement of Interest of Amicus Curiae State of Michigan ..................... 1 Introduction ................................................................................................ 2 Argument .................................................................................................... 5 I. II. The debate over the definition of marriage is ongoing and should be left to the people of the States. ........................................ 5 Voters could reasonably conclude that a family with both a mom and a dad is the ideal setting in which to raise children. ............................................................................................. 7 A. B. C. Marriage is rooted in the unique capacity of the union of one man and one woman to bear children. ......................... 8 The definition of marriage enables both a mom and a dad to serve as role models for their children....................... 10 Marriage enables the parents to have a biological relationship with their children. ........................................... 13

III. Reaffirming the definition of marriage, which excludes other relationships, is reasonable and does not denigrate anyone......... 15 A. B. Other relationships do not share the unique characteristics of marriage. ................................................... 16 Upholding marriage is not a matter of animus. ................... 18

Conclusion and Relief Requested............................................................. 21 Certificate of Compliance ......................................................................... 22 Certificate of Service ................................................................................ 23 Certificate of Digital Submission ............................................................. 24

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TABLE OF AUTHORITIES Page Cases Andersen 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

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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 Statutes 10 Okla St. Ann. 7503-1.1 ..................................................................... 14 MICH. COMP. LAWS 710.24 ..................................................................... 14 Utah Code 78B-6-117(2), (3) .................................................................. 14 Rules FED. R. APP. P. 29(a) ................................................................................... 1 Constitutional Provisions MICH. CONST. art. I, 25 ............................................................................ 1

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STATEMENT OF INTEREST OF AMICUS CURIAE STATE 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 longheld understanding of marriage by voting on the issue. But the federalcourt 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

This brief is being filed pursuant to Federal Rule of Appellate Procedure 29(a). 1

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INTRODUCTION The current debate on marriage presents different ways of understanding 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 preserved 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

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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.

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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.

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ARGUMENT I. The debate over the definition of marriage is ongoing and 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 5

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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 selfgovernment 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

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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 a mom 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. See Sissung v. Sissung, 31 7

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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 (marriage 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 union of 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.

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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. See Andersen 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.

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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 a dad 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. See Hernandez, 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).

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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 children are 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. in Duren 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

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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. See Lofton 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.

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C.

Marriage enables the parents to have a biological relationship 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. See Andersen, 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 13

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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-6117(2), (3). This distinction reflects the fundamental difference between

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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 excludes other 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 15

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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 unique characteristics 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

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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.

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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 samesex 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.

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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?).

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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.

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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 for Amicus Curiae State of Michigan P.O. Box 30212 Lansing, Michigan 48909 (517) 373-1124 lindstroma@michigan.gov Dated: February 10, 2014

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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 General Co-Counsel of Record Attorneys for Amicus Curiae State of Michigan P.O. Box 30212 Lansing, Michigan 48909 (517) 373-1124 lindstroma@michigan.gov

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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 for Amicus Curiae State of Michigan P.O. Box 30212 Lansing, Michigan 48909 (517) 373-1124 lindstroma@michigan.gov

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CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1) all required privacy redactions have been made per 10th Cir. 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 for Amicus Curiae State of Michigan P.O. Box 30212 Lansing, Michigan 48909 (517) 373-1124 lindstroma@michigan.gov

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