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No. 14-1167 (L) _________________

In the United States Court of Appeals For the Fourth Circuit

________________

TIMOTHY B. BOSTIC, individually, et al., Plaintiffs-Appellees, v. GEORGE SCHAEFER III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, et al., Defendants-Appellants. ___________________

Appeal from the United States District Court for the Eastern District of Virginia, Civil Case No. 2:13-CV-395-AWA-LRL (Honorable Arenda L. Wright Allen) _________________

BRIEF OF AMICUS CURIAE COLUMBIA LAW SCHOOL SEXUALITY AND GENDER LAW CLINIC IN SUPPORT OF PLAINTIFFS-APPELLEES Matthew P. McGuire Beverlee E. Silva Diane S. Wizig ALSTON & BIRD LLP 5271 Emperor Blvd., Suite 400 Durham, North Carolina 27703 (919) 862-2200 Suzanne B. Goldberg Sexuality and Gender Law Clinic COLUMBIA LAW SCHOOL 435 West 116th Street New York, New York 10027 (212) 854-0411 Counsel of Record for Amicus Curiae

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TABLE OF CONTENTS INTEREST OF AMICUS CURIAE ..........................................................................1 SUMMARY OF THE ARGUMENT ........................................................................2 ARGUMENT .............................................................................................................3 I. Apart From Excluding Same-Sex Couples, Virginias Marriage Law Generally Reflects the Due Process Guarantees Protection of Choice in Marriage, Including the Choice Not to Procreate. ...........................................3 A. B. Virginia Imposes Few Limits on a Persons Choice of Spouse, Other Than the One at Issue Here. .......................................................................3 Also Consistent with Due Process, Virginia Law Imposes Few Requirements on How Spouses Conduct Themselves Within Marriage, and No Rules at All That Differentiate Roles for Male and Female Partners. ......................................................................................................6 Virginia Law Does Not Require Spouses to be Willing or Able to Procreate. ....................................................................................................9

C.

II. The Marriage Restrictions at Issue Infringe Same-Sex Couples Constitutionally Protected Liberty Interests in Family Integrity and Association. ....................................................................................................10 III. Redefining the Fundamental Right to Marry in a Manner that Excludes Gay Couples Cannot Satisfy the Due Process and Equal Protection Guarantees. 13 CONCLUSION ........................................................................................................16

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TABLE OF AUTHORITIES

Page(s) CASES Bowers v. Hardwick, 478 U.S. 186 (1986) ............................................................................................ 15 Buchanan v. Warley, 245 U.S. 60 (1917) .............................................................................................. 16 Carey v. Population Servs. Intl, 431 U.S. 678 (1977) .............................................................................................. 5 Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) .............................................................................................. 4 De Leon v. Perry, SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) .............. 5 Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................................................................ 14 Henry v. Himes, 1:14-CV-129, 2014 WL 1418395 (S.D. Ohio Apr, 14, 2014).............................. 5 Hodgson v. Minnesota, 497 U.S. 417 (1990) .............................................................................................. 5 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .......................................................................................... 1 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ...................................................................................... 1 Jacobs v. Jacobs, 184 Va. 281 (1945) ............................................................................................... 8 Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) .................................................................................. 1

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Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), appeal docketed, No. 13-4178 (10th Cir. Dec. 20, 2013) ...................................................................................... 5 Lawrence v. Texas, 539 U.S. 558 (2003) ..........................................................................10, 11, 13, 15 Loving v. Virginia, 388 U.S. 1 (1967) ........................................................................................3, 5, 14 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ......................................................................................12, 13 Meyer v. Nebraska, 262 U.S. 390 (1923) ................................................................................11, 12, 14 Meyer v. State, 107 Neb. 657 (1922) ........................................................................................... 11 Moore v. East Cleveland, 431 U.S. 494 (1977) ........................................................................................ 3, 10 Pierce v. Socy of Sisters, 268 U.S. 510 (1925) ................................................................................11, 12, 14 Pifer v. Pifer, 12 Va. Cir. 448 (1975) .......................................................................................... 8 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ................................................................................10, 13, 15 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .............................................................................................. 5 Santosky v. Kramer, 455 U.S. 745 (1982) ............................................................................................ 11 Sevcik v. Sandoval, No. 12-17668 (9th Cir.) ........................................................................................ 1 Turner v. Safley, 482 U.S. 78 (1987) ....................................................................................9, 10, 14

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United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................................................... 1, 5 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ............................................................................... 1 Zablocki v. Redhail, 434 U.S. 374 (1978) .............................................................................................. 4

CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. amend. XIV, 1 .........................................................................2, 11, 15 Va. Code Ann. 16.1-228 ......................................................................................... 7 Va. Code Ann. 18.2-57.2 ........................................................................................ 7 Va. Code Ann. 20-14.2 ........................................................................................... 6 Va. Code Ann. 20-38.1 ........................................................................................ 4 Va. Code Ann. 20-45.1 ........................................................................................... 4 Va. Code Ann. 20-45.2 ........................................................................................... 4 Va. Code Ann. 20-45.3 ........................................................................................... 4 Va. Code Ann. 20-48 .............................................................................................. 4 Va. Code Ann. 20-49 .............................................................................................. 4 Va. Code Ann. 20.61 et seq. ................................................................................. 7 Va. Code Ann. 20-89.1 ....................................................................................... 7, 8 Va. Code Ann. 20-89.1(b)....................................................................................... 9 Va. Code Ann. 20-147 et seq. ............................................................................... 7 Va. Code Ann. 20-150 ............................................................................................ 7 Va. Code Ann. 20-156 ............................................................................................ 9

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Va. Code Ann. 20-157 et seq. ............................................................................... 9 Va. Code Ann. 63.2-1215 ....................................................................................... 9 Va. Code Ann. tit. 20 ................................................................................................. 6 Va. Const. art. 1, 15-A ............................................................................................ 4

OTHER AUTHORITIES Peter N. Swisher et al., Family Law: Theory, Practice and Forms (2014) .......6, 7, 8

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INTEREST OF AMICUS CURIAE The Columbia Law School Sexuality and Gender Law Clinic (the Clinic or Amicus), founded in 2006, is the first such clinical law program at an American law school. The Clinic has extensive expertise in the constitutional doctrine

related to marriage and family recognition. In fact, the Clinic previously submitted an amicus brief on closely-related due process issues to the Ninth Circuit in Sevcik v. Sandoval, No. 12-17668 (9th Cir.) (pending appeal). The Clinic has also

submitted amicus briefs in numerous other cases seeking to end the exclusion of same-sex couples from marriage and the exclusion of same-sex couples marriages from legal recognition including United States v. Windsor, 133 S. Ct. 2675 (2013), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), at the U.S. Supreme Court, and before state supreme courts in California in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), Connecticut in Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008), and Iowa in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). The Clinics interest here is in highlighting the relation between Virginias array of marriage laws and the U.S. Constitutions due process guarantee, as developed below. The protection of individual decision making in matters as personally important as marriage is reflected throughout Virginias marriage laws generally, which impose few restrictions on adults seeking to marry. By contrast,
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Virginia law imposes a singular, categorical and constitutionally impermissible burden on lesbian and gay couples who seek to exercise their fundamental right to marry.1 SUMMARY OF THE ARGUMENT Virginias marriage laws are largely consistent with the Due Process Clause of the U.S. Constitution, which the Supreme Court has recognized repeatedly as protecting freedom of choice in marriage. That is, the states extensive domestic relations framework generally takes pains to avoid restrictions on whom an individual chooses to marry. Indeed, the states highest court has gone so far as to remind Virginians that neither the marriage law nor the courts will interfere with individuals marital choices, no matter how happy or unwise. Nor do Virginias laws require that, once married, spouses be willing to procreate or that male and female spouses adopt distinct roles within a marriage. Instead, the states only restrictions on spouses choices within a marriage concern violence, neglect, and abuse.

All parties have consented to the filing of this brief. See Joint Notice of Consent filed March 14, 2014 (document No. 58). No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amicus, its members, or its counsel made a monetary contribution to its preparation or submission.
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Matters stand otherwise with respect to individuals who would choose a spouse of the same sex. Freedom of choice is absent here. Virginias multiple bars on individuals from choosing a same-sex marital partner thus exist in sharp contrast to the states otherwise pervasive respect for marital freedom of choice. In doing so, they infringe the Constitutions long-settled protection against state interference in deeply personal decisions related to family life.2 ARGUMENT I. Apart From Excluding Same-Sex Couples, Virginias Marriage Law Generally Reflects the Due Process Guarantees Protection of Choice in Marriage, Including the Choice Not to Procreate.

Virginias lawboth statutory and jurisprudentialimposes few burdens on the freedom of choice in marriage that the U.S. Supreme Court has deemed to be fundamental under the Due Process Clause, aside from forbidding the choice of a spouse of the same sex. See generally Moore v. East Cleveland, 431 U.S. 494, 499 (1977); Loving v. Virginia, 388 U.S. 1, 1012 (1967). A. Virginia Imposes Few Limits on a Persons Choice of Spouse, Other Than the One at Issue Here.

Apart from the restrictions challenged in this case, the Domestic Relations title of the Virginia Code prohibits marriage only when one or both partners is Amicus endorses, but does not duplicate here, the arguments of plaintiffs and the Harris intervenors that Virginias restrictions on marriage for same-sex couples also violate the Constitutions equal protection guarantee.
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currently married or lacks the capacity to consent, or when the partners are related to a specified degree by blood or marriage. See Va. Code Ann. 20-38.1, 2045.1. Parental consent is required for anyone under 18, and those under 16 cannot marry unless the female partner is or has been pregnant. See Va. Code Ann. 2048, 20-49. In other words, an unmarried person who is at least 18 years old and has the capacity to consent can marry any other consenting adult who is not a relativeso long as the chosen partner is also not of the same sex. See Va. Const. art. 1, 15A; Va. Code Ann. 20-45.2, 20-45.3. Virginias very limited set of restrictions ensures the near-full freedom of personal choice in matters of marriage that the U.S. Supreme Court has said is required by the U.S. Constitutions due process guarantee. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974); see also Zablocki v. Redhail, 434 U.S. 374, 387 (1978) (stressing that freedom of choice is a fundamental aspect of marriage). Indeed, the Supreme Court has reinforced repeatedly that the state should not be in the business of limiting an individuals choice of spouse outside of concerns related to consanguinity, minimum age, bigamy, and consent. [T]he regulation of constitutionally protected decisions, such as . . . whom [a person] shall marry, must be predicated on legitimate state concerns other than
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disagreement with the choice the individual has made. Hodgson v. Minnesota, 497 U.S. 417, 435 (1990); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) ([T]he Constitution undoubtedly imposes constraints on the States power to control the selection of ones spouse . . . .); Carey v. Population Servs. Intl, 431 U.S. 678, 684-85 (1977) ([I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education. (citations omitted)); Loving, 388 U.S. at 12 (Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State). Numerous courts have recognized that this constitutional protection against state interference with the choice of marital partner encompasses an individuals choice of a same-sex partner. See, e.g., Henry v. Himes, 1:14-CV-129, 2014 WL 1418395, at *7 (S.D. Ohio Apr, 14, 2014) ([W]hile states have a legitimate interest in regulating and promoting marriage, the fundamental right to marry belongs to the individual.); De Leon v. Perry, SA-13-CA-00982-OLG, 2014 WL 715741, at *18 (W.D. Tex. Feb. 26, 2014) (While Texas has the unquestioned authority to regulate and define marriage, the State must nevertheless do so in a way that does not infringe on an individual's constitutional rights.) (quoting United States v. Windsor, 133 S. Ct. 2675, 2693 (2013)); Kitchen v. Herbert, 961
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F. Supp. 2d 1181, 11991200 (D. Utah 2013) (The right to marry is intertwined with the rights to privacy and intimate association, and an individuals choices related to marriage are protected because they are integral to a persons dignity and autonomy.), appeal docketed, No. 13-4178 (10th Cir. Dec. 20, 2013). Of course, like every state, Virginia has an array of rules in place regarding the solemnization and termination of marriages. See generally Va. Code Ann. tit. 20 (Domestic Relations). Notably, though, these rules do not restrict individuals in their choice of spouse beyond the few eligibility requirements discussed supra. At one time, the state required a premarital blood test for syphilis, but even that limitation was repealed in 1984. Va. Code Ann. 20-14.2 (repealed); see also Peter N. Swisher et al., Family Law: Theory, Practice and Forms 1:2 (2014) (Statutory marriage requirements). Against this backdrop, the rules disallowing individuals from marrying the person of their choice, see supra, cut strikingly against the due process limitation on government interference with this intimate and personal choice. B. Also Consistent with Due Process, Virginia Law Imposes Few Requirements on How Spouses Conduct Themselves Within Marriage, and No Rules at All That Differentiate Roles for Male and Female Partners.

There is little in Virginia law that specifies how spouses should behave within marriage, apart from criminal laws that prohibit violence and abuse. See,
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e.g., Va. Code Ann. 16.1-228 (defining family abuse); 18.2-57.2 (criminalizing assault and battery against a family member). Those rules that do exist are careful not to assign different obligations to men or women within marriage. For example, the statutes that govern instances of desertion or

nonsupport address in equal terms the responsibilities of spouses and parents without regard to gender-role expectations. See Va. Code Ann. 20.61 et seq. Likewise, Virginia permits spouses to craft agreements that define the terms of their marriage, including financial commitments and [a]ny other matter, including their personal rights and obligations, so long as the agreements do not violate public policy or the criminal law. See Va. Code Ann. 20-150; see generally Va. Code Ann. 20-147 et seq. Further, Virginia permits annulment of marriages only for very limited reasons, reinforcing that parties exercise nearly complete autonomy when entering marriage, for better or worse. See Va. Code Ann. 20-89.1 (setting out grounds for annulment). And while void marriages (e.g. bigamous marriages or marriages of minors without the required consent, discussed supra) are easily invalidated, a broader range set of voidable marriages is assumed to be legally valid unless annulled by the parties themselves. general). Swisher, supra, 2.3 (Annulment: In

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The set of voidable marriages that is permitted to continue includes marriage to a spouse who is physically or mentally incompetent, fraudulent marriage, marriage under duress, marriage to a felon or prostitute, and marriages where one spouse ha[s] a child by another person. Id. Moreover, even these voidable marriages may not be annulled if the parties cohabit after knowledge of the marital impediment that would give rise to an annulment or if the parties had been married for two years or more prior to the institution of the annulment suit. Id.; see also Va. Code Ann. 20-89.1. As one Virginia court held in declining to annul the marriage of a young couple, [t]he question before the law-making power is not whether such unions are wise or foolish . . . . Pifer v. Pifer, 12 Va. Cir. 448, 453 (1975). The Pifer court also invoked the Virginia Supreme Courts observation about the role of the state in marriage: Courts do not exist to guarantee happy and successful

marriages, or to annul and cancel the effect of mere errors of judgment in the making of contracts of marriage. In the absence of fraud, duress, or other improper elements affecting such transactions, no relief can be granted. Id. at 453-54 (quoting Jacobs v. Jacobs, 184 Va. 281, 298 (1945)).

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C.

Virginia Law Does Not Require Spouses to be Willing or Able to Procreate.

Within the extensive body of Virginia law just discussed, there is no procreation requirement associated with marriageand there is no statute that can be read to support the position that spouses ought to have children biologically. To the contrary, Virginias marriage statutes expressly set out rights and responsibilities related to assisted conception that completely or partially replaces sexual intercourse as the means of conception. Va. Code Ann. 20-156; see also Va. Code Ann. 20-157 et seq. Likewise, Virginia makes no legal distinction between children who are conceived by, or adopted by, their parents. Va. Code Ann. 63.2-1215. Indeed, the annulment statutes discussed above do not make unwillingness to procreate a ground for annulment. Instead, the statute provides only that

annulment may be sought [i]n the case of natural or incurable impotency of body existing at the time of entering into the marriage contract. Va. Code Ann. 2089.1(b). This delinking of marriage and procreation is consistent with the Supreme Courts commentary on the due process protections governing marriage. As the Court explained in Turner v. Safley, 482 U.S. 78, 95-96 (1987), when permitting a prison inmate to marry, marriage remains a fundamental right even for those who may never have the opportunity to consummate a marriage, much less have
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children within the marriage. Instead, numerous other important attributes of marriage remain . . . [even] after taking into account the limitations imposed by prison life. Id. at 95. Among these, the Court included expressions of emotional support and public commitment . . . [as] an important and significant aspect of the marital relationship, along with spiritual significance and the receipt of government benefits . . . , property rights . . . , and other, less tangible benefits Id. at 95-96. II. The Marriage Restrictions at Issue Infringe Same-Sex Couples Constitutionally Protected Liberty Interests in Family Integrity and Association.

As the Court has repeatedly explained, the Constitutions due process and equal protection guarantees protect the freedom to marry as one among several aspects of what might broadly be termed private family life that are constitutionally protected against state interference. Moore, 431 U.S. at 536. Others identified by the Court include personal decisions relating to . . . procreation, contraception, family relationships, child rearing, and education. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)). These kinds of decisions, like the decision to marry, are elemental to an individuals ability to define the attributes of personhood. Id. For this reason, the Court has found in numerous cases that the Constitution demands . . . the
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autonomy of the person in making these choices. Id.; see also, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) ([F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.). The Court has consistently held, too, that this autonomy to decide how to structure ones family must be accessible to all. Put another way, the state may not grant familial autonomy to some but not others. Two older decisions, Meyer v. Nebraska, 262 U.S. 390, 396-97 (1923), and Pierce v. Socy of Sisters, 268 U.S. 510, 53435 (1925), lay the groundwork for this proposition, making clear that the Courts due process jurisprudence is centrally concerned with guaranteeing equal access to fundamental associational rights (there, the right of parents to control their childrens upbringing). In Meyer, the Court overturned a law that made it illegal to teach any language other than English to a student who had not yet completed eighth grade. Recognizing that the laws impact fell singularly on those of foreign lineage, Meyer, 262 U.S. at 398 (quoting the decision below, Meyer v. State, 107 Neb. 657, 662 (1922)), the Court stressed that [t]he protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Id. at 401. This fundamental associational right to establish a home and bring up children had to be available on an equal basis to the countrys newest
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inhabitants as well as to its longtime residents. Id. at 399. Indeed, the Courts insistence on equal access to this associational right outweighed the states proffered interest in establishing English as the primary language, id. at 401, an interest that was surely understood as central to American life at that time. In Pierce, the Court likewise overturned, on due process grounds, a law that required all children to attend public schools because the law unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control. 268 U.S. at 534-35. In this case, the targets were religious minoritiesspecifically, Roman Catholicswho maintained that the law conflict[ed] with the right of parents to choose schools where their children will receive appropriate mental and religious training. Id. at 532. The states refusal to allow those parents equal access to the right to decide how their children would be educated offended the fundamental theory of liberty. Id. at 535. Likewise, in M.L.B. v. S.L.J., the Court struck down a state-imposed fee to appeal a termination of parental rights because that fee unequally burdened the associational right of indigent persons to be parents. 519 U.S. 102, 127 (1996). In so holding, the Court recognized that [d]ue process and equal protection principles converge when state action restricts individual choices related to family formation. Id. at 120. The invalidated fee requirement fenc[ed] out
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would-be appellants based solely on their inability to pay core costs, defying the requirement of essential fairness of the state-ordered proceedings given the intensity of the individual interest at stake. Id. If there is a fundamental liberty interest involvedsuch as the integrity of the parent-child relationshipthe state must provide equal justice to all. Id. at 124. Same-sex couples and their deeply personal decisions about how to build a family life together are no exception to this rule. See Lawrence, 539 U.S. at 575, (holding that the substantive guarantee of liberty may not be infringed for samesex couples any more than it can be infringed for heterosexual couples). In

choosing to rely on due process to strike down a law that restricted the associational freedom of gay people with respect to personal choices about sexual intimacy, the Court affirmed that the due process guarantee, like the Equal Protection Clause, protects individuals ability to exercise their fundamental rights on an equal basis with others. As the Court explained, [p]ersons in a homosexual relationship may seek autonomy . . . just as heterosexual persons do for the most intimate and personal choices a person may make in a lifetime. Id. at 574 (quoting Casey, 505 U.S. at 851). III. Redefining the Fundamental Right to Marry in a Manner that Excludes Gay Couples Cannot Satisfy the Due Process and Equal Protection Guarantees.

The defendant and defendant-intervenors suggestion that the issue here is

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not the fundamental right to marry, but rather the right to marry a person of the same sex, see Appellant Schaefers Opening Br. at 34 et seq., Appellant McQuiggs Opening Br. (McQuigg Br.) at 29-30, ignores the extent to which fundamental rights are defined by what conduct they protect, not by who can exercise them. If their suggestion were adopted, the Constitutions insistence on equal and fair access to fundamental rights would be evisceratedstates could restrict some groups exercise of fundamental rights and then revise those rights to render them available only to those not similarly burdened. Refashioning the right at issue in any of the cases just discussed makes clear how unworkable a proposition this is. Meyer, for example, was not based on a fundamental right of Germans to raise their children in their own tradition but rather on a general liberty interest of all parents in choosing how their children will be raised. Pierce did not describe a fundamental right to parent in a Catholic fashion, but rather a general liberty interest of all parents to choose how their children are educated. Likewise, Turner was not a case about prisoner marriage any more than Loving was about a fundamental right to interracial marriage. Instead, these cases were about the fundamental right to marry. Cf. Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, . . . a harmony in living, . . . a bilateral
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loyalty.). Indeed, the Courts opinion in Lawrence directly corrected a similar rightsframing error in reversing Bowers v. Hardwick, 478 U.S. 186 (1986). In Bowers, the Court characterized the plaintiffs claim as seeking protection for a fundamental right to engage in homosexual sodomy. Id. at 191. The Lawrence court flatly rejected that description as a mischaracterization of the right at issue. It held that defendants Lawrence and Garner sought protection of their fundamental right to the autonomy of the person to make the most intimate and personal choices . . . [that are] central to personal dignity and autonomy . . . [and] to the liberty protected by the Fourteenth Amendment. Lawrence, 539 U.S. at 574 (quoting Casey, 505 U.S. at 851). That liberty right could not properly be

understood as defined by the sex or sexual orientation of the parties who sought to exercise it. In the same vein, the defendant-intervenors speculation that equal access to marriage for same-sex couples could cause heterosexual couples to cease to value the civil institution of marriage, McQuigg Br. at 47-48, 53-57, rests on the similarly impermissible reasoning that a fundamental right can be denied to some based on the preferences of others. Indeed, that reasoning is uncomfortably akin to the rationale advanced to defend racially restrictive covenants nearly a century ago. It is said that such acquisitions [of property] by colored persons depreciate
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property owned in the neighborhood by white persons. Buchanan v. Warley, 245 U.S. 60, 82 (1917). Rejecting this argument, the Supreme Court offered an observation that is also applicable here: But property [marriage] may be acquired by undesirable white [heterosexual] neighbors or put to disagreeable though lawful uses with like results. Id. Moreover, conditioning one groups access to a fundamental right based on the preference of another is wholly contrary to longstanding doctrine, as just discussed, that recognizes the central importance of these rights. CONCLUSION For the foregoing reasons, Amicus respectfully requests that this Court affirm the district court and permanently enjoin the Virginia amendment and laws at issue as unconstitutional.

Respectfully submitted, /s/ Suzanne B. Goldberg Suzanne B. Goldberg Sexuality and Gender Law Clinic* Columbia Law School 435 West 116th Street New York, New York 10027 Tel: (212) 854-0411 Fax: (212) 854-7946 Counsel of Record for Amicus Curiae

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ALSTON & BIRD LLP By: /s/ Matthew P. McGuire Matthew P. McGuire Beverlee E. Silva Diane S. Wizig 4721 Emperor Blvd., Suite 400 Durham, North Carolina 27703 Tel: (919) 862-2200 Fax: (919) 862-2260

*Amicus gratefully acknowledges the assistance of Carrie Tirrell, a student in the Columbia Law School Sexuality and Gender Clinic.

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CERTFICIATE OF COMPLIANCE Pursuant to the Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned counsel certifies that this brief: (i) complies with the type-volume limitation of Rule 32(a)(7)(B) because it contains 3,602 words, including footnotes and excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii); and (ii) complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office Word 2010 and is set in Times New Roman font in a size equivalent to 14 points or larger.

/s/ Suzanne B. Goldberg Suzanne B. Goldberg

April 18, 2014

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CERTIFICATE OF SERVICE I hereby certify that, on April 18, 2014, the foregoing brief was filed with the Clerk of Court using the Courts CM/ECF system. I further certify that counsel for all parties in this case are registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Suzanne B. Goldberg Suzanne B. Goldberg

April 18, 2014

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Appeal: 14-1167

Doc: 165-2

Filed: 04/18/2014

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