Joan Heifetz Hollinger, Et Al., Amicus Brief

No.
14-50196
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and
MARK PHARISS,
Plaintiffs-Appellees,
v.
RICK PERRY, in his official capacity as Governor of the State of Texas; GREG
ABBOTT, in his official capacity as Texas Attorney General; and DAVID LAKEY,
in his official capacity as Commissioner of the Texas Department of State Health
Services,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION, NO. 5:13-CV-00982

BRIEF OF AMICI CURIAE JOAN HEIFETZ HOLLINGER,
COURTNEY JOSLIN, AND SEVENTY-FOUR OTHER
PROFESSORS AND EXPERTS IN FAMILY LAW
IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

Stuart Plunkett
Andrew Bernick
Sara Bartel
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
Tel: (415) 268-6000
Fax: (415) 268-7522
Email: sbartel@mofo.com
Counsel for Amici Curiae
Family Law Professors
Case: 14-50196 Document: 00512771151 Page: 1 Date Filed: 09/16/2014
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No. 14-50196
De Leon v. Perry, et al.

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the Judges of
this Court may evaluate possible disqualification or recusal.
PLAINTIFFS-APPELLEES:

Cleopatra De Leon, Nicole Dimetman, Victor
Holmes, and Mark Phariss
PLAINTIFFS-APPELLEES COUNSEL:

Barry Alan Chasnoff (Trial and appellate
counsel)
Daniel McNeel Lane, Jr. (Trial and appellate
counsel)
Matthew E. Pepping (Trial and appellate
counsel)
Akin Gump Strauss Hauer & Feld LLP
300 Convent St., Suite 1600
San Antonio, TX 78205

Michael P. Cooley (Trial and appellate
counsel)
Andrew Newman (Trial and appellate counsel)
1700 Pacific Ave, Suite 4100
Dallas, TX 75201

Jessica M. Weisel (Trial and appellate counsel)
2029 Century Park East, Suite 2400
Los Angeles, CA 90067-3010

Frank Stenger-Castro (Trial counsel)
Attorney at Law
208 Sir Arthur Court
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DEFENDANTS-APPELLANTS:

Rick Perry, in his official capacity as Governor
of Texas (Defendant / Appellant)
Greg Abbott, in his official capacity as Texas
Attorney General (Defendant / Appellant)
David Lakey, in his official capacity as
Commissioner of the Texas Department of
State Health Services (Defendant /
Appellant)
Gerard Rickhoff, in his official capacity as
Bexar County Clerk (Defendant)

DEFENDANTS-APPELLANTS
COUNSEL:

Michael P. Murphy (Trial and appellate
counsel for Appellants)
Beth Ellen Klusmann (Trial and appellate
Office of the Attorney General
Office of the Solicitor General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548

Jonathan F. Mitchell (Trial and appellate
Office of the Solicitor General for the State of
Texas
209 W. 14th Street
Austin, TX 78701

Susan Bowen (Trial counsel for Defendant
Rickhoff)
Bexar County District Attorneys Office
101 Nueva, 4th Floor

AMI CI CURIAE IN SUPPORT OF DEFENDANTS-APPELLANTS:
Amici Curiae: Counsel:
23 SCHOLARS OF FEDERALISM AND
JUDICIAL RESTRAINT
Dean John Sauer
Clark & Sauer, L.L.C.
Suite 625
7733 Forsyth Boulevard
Saint Louis, MO 63105

HELEN M. ALVARE Steven James Griffin
Daniel, Coker, Horton & Bell, P.A.
Suite 400
4400 Old Canton Road
Jackson, MS 39211

RYAN T. ANDERSON Michael Francis Smith
Smith Appellate Law Firm
Suite 1025
1717 Pennsylvania Avenue, N.W.
Washington, DC 20006

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BECKET FUND FOR RELIGIOUS
LIBERTY
Eric C. Rassbach
Becket Fund for Religious Liberty
Suite 220
3000 K Street, N.W.

DAVID BOYLE (MOTION FOR LEAVE
TO FILE AMICUS BRIEF PENDING)
David Boyle
P.O. Box 15143
Long Beach, CA 90815

PROFESSOR JASON S. CARROLL Robert Smead Hogan
Hogan Law Firm, P.C.
1801 13th Street
Lubbock, TX 79401-0000

CENTER FOR THE PRESERVATION OF
AMERICAN IDEALS
Cecilia M. Wood
Suite 830
919 Congress Avenue
Capitol Centre Building
Austin, TX 78701

CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS
Richard Arthur Bordelon
Ralph Joseph Aucoin, Sr.
Denechaud & Denechaud, L.L.P.
Suite 3010
1010 Common Street
New Orleans, LA 70112-0000

COALITION OF AFRICAN AMERICAN
PASTORS
Leif A. Olson
Olson Firm, P.L.L.C.
Suite 300/PMB 188
4830 Wilson Road
Humble, TX 77396

CONCERNED WOMEN FOR AMERICA Steven W. Fitschen
National Legal Foundation
Suite 204
2224 Virginia Beach Boulevard
Virginia Beach, VA 23454-0000

EAGLE FORUM EDUCATION AND
LEGAL DEFENSE FUND
Lawrence John Joseph
Suite 200
1250 Connecticut Avenue, N.W.
Washington, DC 22102-0000

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ETHICS & RELIGIOUS LIBERTY
COMMISSION OF THE SOUTHERN
BAPTIST CONVENTION
Suite 3010
1010 Common Street

KATY FAUST (MOTION FOR LEAVE TO
FILE AMICUS BRIEF PENDING)
David Boyle
P.O. Box 15143

ROBERT P. GEORGE Michael Francis Smith
Suite 1025

SHERIF GIRGIS Michael Francis Smith
Suite 1025

PROFESSOR ALAN J. HAWKINS Robert Smead Hogan
Hogan Law Firm, P.C.
1801 13th Street
Lubbock, TX 79401-0000

B. N. KLEIN (MOTION FOR LEAVE TO
FILE AMICUS BRIEF PENDING)
David Boyle
P.O. Box 15143

LIBERTY, LIFE, AND LAW
FOUNDATION
Deborah Jane Dewart
620 E. Sabiston Drive
Swansboro, NC 28584-9674

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LIBERTY COUNSEL Mathew D. Staver
Anita Leigh Staver
Liberty Counsel
2nd Floor
1053 Maitland Center Commons
Maitland, FL 32751-7214

Mary Elizabeth McAlister
Liberty Counsel
Suite 2775
100 Mountain View Road
Lynchburg, VA 24502-0000

ROBERT OSCAR LOPEZ (MOTION FOR
LEAVE TO FILE AMICUS BRIEF
PENDING)
David Boyle
P.O. Box 15143

LOUISIANA FAMILY FORUM David Robert Nimocks
Alliance Defending Freedom
Suite 509
801 G Street, N.W.

Robert Paul Wilson
Law Offices of Robert P. Wilson
Suite 150
26545 Interstate 10, W.
Boerne, TX 78006

LUTHERAN CHURCH MISSOURI
SYNOD
Suite 3010
1010 Common Street

MARRIAGE LAW FOUNDATION William C. Duncan
Marriage Law Foundation
1868 N. 800, E.
Lehi, UT 84043

PAUL MCHUGH Kevin Trent Snider, Chief Counsel
Pacific Justice Institute
Suite 115
9851 Horn Road
Sacramento, CA 95827
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NATIONAL ASSOCIATION OF
EVANGELICALS
Suite 3010
1010 Common Street

NORTH CAROLINA VALUES
COALITION
Deborah Jane Dewart
620 E. Sabiston Drive
Swansboro, NC 28584-9674

DAVID ROBINSON David Robinson
P.O. Box 780
North Haven, CT 06473

SOCIAL SCIENCE PROFESSORS Jon Roy Ker
400 N. Hewitt Drive
Hewitt, TX 76643-0000

STATE OF ALASKA Thomas Molnar Fisher, Solicitor General
Office of the Attorney General for the State
of Indiana
IGCS 5th Floor
302 W. Washington Street
Indianapolis, IN 46204

STATE OF ARIZONA Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

STATE OF COLORADO Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

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STATE OF IDAHO Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

STATE OF INDIANA Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

STATE OF LOUISIANA Stuart Kyle Duncan
Duncan, P.L.L.C.
Suite 300
1629 K Street, N.W.

STATE OF MONTANA Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

STATE OF OKLAHOMA Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

STATE OF SOUTH CAROLINA Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

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STATE OF SOUTH DAKOTA Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

STATE OF UTAH Thomas Molnar Fisher, Solicitor General
of Indiana
IGCS 5th Floor

DAWN STEFANOWICZ (MOTION FOR
LEAVE TO FILE AMICUS BRIEF
PENDING)
David Boyle
P.O. Box 15143

TEXAS CONSERVATIVE COALITION Russell Henry Withers
Texas Conservative Coalition
Suite 450
919 Congress Avenue
Austin, TX 78701

TEXAS EAGLE FORUM Lawrence John Joseph
Suite 200
1250 Connecticut Avenue, N.W.
Washington, DC 22102-0000

TEXAS VALUES David Robert Nimocks
Alliance Defending Freedom
Suite 509
801 G Street, N.W.

Robert Paul Wilson
Law Offices of Robert P. Wilson
Suite 150
26545 Interstate 10, W.
Boerne, TX 78006

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UNITED STATES CONFERENCE OF
CATHOLIC BISHOPS
Suite 3010
1010 Common Street

UNITED STATES PASTOR COUNCIL Leif A. Olson
Olson Firm, P.L.L.C.
Suite 300/PMB 188
4830 Wilson Road
Humble, TX 77396

DAVID ROBERT UPHAM, ESQ. David Robert Upham
University of Dallas
1845 E. Northgate Drive
Irving, TX 75062

Amici Curiae professors and experts of family law (see Appendix A) are
individuals signing in their individual capacity; they have no parent corporation or
any publicly held corporation that owns 10% or more of its stock.

Dated: September 16, 2014 s/ Sara Bartel
Sara Bartel
425 Market Street
Tel: (415) 268-6000
Fax: (415) 268-7522

Family Law Scholars


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................. xii
INTEREST OF AMICI CURIAE .............................................................................. 1
SUMMARY OF ARGUMENT ................................................................................ 1
ARGUMENT ............................................................................................................ 4
I. PROCREATION IS NOT A NECESSARY ELEMENT OF
MARRIAGE. .................................................................................................. 4
A. The Ability or Desire to Procreate Has Never Been the Defining
Feature of or a Prerequisite for a Valid Marriage. ............................... 5
B. The Constitutional Rights to Marry and to Procreate Are
Distinct and Independent. ..................................................................... 9
II. A CLAIMED PREFERENCE FOR GENDER-DIFFERENTIATED
PARENTING IS CONTRADICTED BY STATE AND FEDERAL
LAW AND BY SOCIAL SCIENCE. ........................................................... 10
A. Texas Does Not Require a Biological Relationship to Establish
a Legal Parent-Child Relationship. .................................................... 10
B. Texas Has Eliminated Marriage Laws Based on Gender
Stereotypes. ........................................................................................ 13
C. A Desire to Promote Gender-Differentiated Parenting Is a
Constitutionally Impermissible Interest. ............................................ 16
D. Social Science Refutes Claims About Child Outcomes Based
on Parents Gender or Sexual Orientation. ........................................ 19
E. Marriage Is Open to Virtually Any Different-Sex Couple,
Irrespective of Their Ability to Be Optimal Parents. ..................... 21
III. TEXAS MARRIAGE BAN BEARS NO RATIONAL
RELATIONSHIP TO THE WELL-BEING OF CHILDREN. .................... 23
A. The Marriage Ban Does Nothing to Further the Well-being of
Children Raised by Different-Sex Couples. ....................................... 23
B. The Marriage Ban Harms the Well-being of Children Raised by
Same-Sex Couples. ............................................................................. 25

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C. Denying Rights and Protections to Children Is a
Constitutionally Impermissible Means of Influencing Their
Parents Behavior. .............................................................................. 27
CONCLUSION ....................................................................................................... 30


xii
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TABLE OF AUTHORITIES
Page(s)
CASES
Alonso v. Alvarez,
409 S.W.3d 754 (Tex. App. 2013) ........................................................................ 8
Baskin v. Bogan,
No. 14-2396, 2014 WL 4359059 (7th Cir. Sept. 4, 2014) .................................. 29
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ............................................................................................ 22
Bell v. Low Income Women of Texas,
95 S.W.3d 253 (Tex. 2002)................................................................................. 19
Bostic v. Schaefer,
No 14-1167, 2014 WL 3702493 (4th Cir. Jul. 28, 2014),
pet. for cert. filed, 83 U.S.L.W. 3102 (U.S. Aug. 8, 2014) (No. 14-153) .......... 21
Califano v. Goldfarb,
430 U.S. 199 (1977) ............................................................................................ 16
Commr v. Chase Manhattan Bank,
259 F.2d 231 (5th Cir. 1958) .............................................................................. 14
De Leon v. Perry,
975 F. Supp. 2d 632 (W.D. Tex. 2014) .............................................................. 24
DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) ............................................................. 20
Dennis v. Smith,
962 S.W.2d 67 (Tex. App. 1997) ........................................................................ 15
Eisenstadt v. Baird,
405 U.S. 438 (1972) .............................................................................................. 9
Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................................................................ 16
(continued)
Page

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Geiger v. Kitzhaber,
994 F. Supp. 2d 1128 (D. Or. 2014) ................................................................... 25
Gomez v. Perez,
409 U.S. 535 (1973) ........................................................................................... 28
Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ............................................................................. 26
Goodson v. Castellanos,
214 S.W.3d 741 (Tex. App. 2007) ...................................................................... 15
Griswold v. Connecticut,
381 U.S. 479 (1965) .......................................................................................... 6, 9
Hausman v. Hausman,
199 S.W.3d 38 (Tex. App. 2006) ........................................................................ 11
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ........................................................................................ 20
In re J.W.T.,
872 S.W.2d 189 (Tex. 1994) .............................................................................. 27
In re K.M.T.,
415 S.W.3d 573 (Tex. App. 2013) ...................................................................... 11
In re L.M.I.,
119 S.W.3d 707 (Tex. 2003) .............................................................................. 12
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) .................................................................................... 26
In re Marriage of Richards,
991 S.W.2d 32 (Tex. App. 1999) .......................................................................... 7
(continued)
Page

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In re Rodriguez,
248 S.W.3d 444 (Tex. App. 2008) ...................................................................... 11
In re Shockley,
123 S.W.3d 642 (Tex. App. 2003) ...................................................................... 11
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) ............................................................................................ 18
Kirchberg v. Feenstra,
450 U.S. 455 (1981) ............................................................................................ 16
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014), pet. for cert. filed,
83 U.S.L.W. 3102 (U.S. Aug. 5, 2014) (No. 14-124) ............................ 20, 21, 24
Latta v. Otter,
No. 1:13-cv-00482, 2014 WL 1909999 (D. Idaho May 13, 2014) .................... 26
Lawrence v. Texas,
539 U.S. 558 (2003) .......................................................................................... 6, 9
Lehr v. Robertson,
463 U.S. 248 (1983) ............................................................................................ 12
Levy v. Louisiana,
391 U.S. 68 (1968) .............................................................................................. 28
Lewis v. Lewis,
944 S.W.2d 630 (Tex. 1997) ................................................................................ 8
Meyer v. Nebraska,
262 U.S. 390 (1923) ............................................................................................ 18
Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ............................................................................................ 18
(continued)
Page

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Nev. Dept of Human Res. v. Hibbs,
538 U.S. 721 (2003) ............................................................................................ 17
Orr v. Orr,
440 U.S. 268 (1979) ...................................................................................... 14, 16
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ................................................................ 20
Pierce v. Socy of Sisters,
268 U.S. 510 (1925) ............................................................................................ 18
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ............................................................................................ 17
Quilloin v. Walcott,
434 U.S. 246 (1978) ............................................................................................ 12
Romer v. Evans,
517 U.S. 620 (1996) ........................................................................................ 4, 10
Stanley v. Illinois,
405 U.S. 645 (1972) ............................................................................................ 17
Stanton v. Stanton,
421 U.S. 7 (1975) ................................................................................................ 17
Troxel v. Granville,
530 U.S. 57 (2000) .............................................................................................. 18
Turner v. Safley,
482 U.S. 78 (1987) ................................................................................................ 9
United States v. Virginia,
518 U.S. 515 (1996) ............................................................................................ 16
(continued)
Page

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United States v. Windsor,
133 S. Ct. 2675 (2013) .............................................................................. 4, 20, 23
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ............................................................................. 22
Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972) ............................................................................................ 28
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ............................................................................................ 16
Whittlesey v. Miller,
572 S.W.2d 665 (Tex. 1978) ................................................................................ 8
Zablocki v. Redhail,
434 U.S. 374 (1978) ............................................................................................ 22
CONSTITUTIONAL PROVISIONS
TEX. CONST.
art. I 3(a) ........................................................................................................... 19
art. I 32 ............................................................................................................... 1
STATUTES
26 U.S.C.A 6013. .................................................................................................... 8
Tex. Civ. Prac. & Rem. Code Ann.
71.004 ................................................................................................................ 8
(continued)
Page

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Tex. Estates Code Ann.
112.052 ............................................................................................................... 8
201.001 ............................................................................................................... 8
201.002 ............................................................................................................... 8
201.003 ............................................................................................................... 8
201.051 ............................................................................................................. 29
201.052 ............................................................................................................. 29
Tex. Family Code Ann.
1.105 ................................................................................................................. 14
2.001 ................................................................................................................... 1
2.002 ................................................................................................................. 21
2.003 ............................................................................................................... 6, 7
2.004 ............................................................................................................... 6, 7
2.402 et seq. ....................................................................................................... 7
2.501 ............................................................................................................. 8, 14
3.003 ................................................................................................................... 8
3.1013.102.................................................................................................... 14
6.001 ................................................................................................................... 7
6.001 et seq. ..................................................................................................... 14
6.0016.007...................................................................................................... 7
6.106 et seq. ....................................................................................................... 6
6.201 et seq. ....................................................................................................... 6
6.204 ................................................................................................................... 1
7.001 ................................................................................................................. 14
8.051 ................................................................................................................... 8
101.016 ............................................................................................................. 13
153.002 ............................................................................................................. 15
153.003 ............................................................................................................. 15
154.001 ....................................................................................................... 15, 29
154.010 ............................................................................................................. 15
160.102 ............................................................................................................. 12
160.201 et seq. ................................................................................................. 13
160.202 ............................................................................................................. 28
160.204 ............................................................................................................. 11
(continued)
Page

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160.607 ............................................................................................................. 11
160.608 ............................................................................................................. 11
160.703 ............................................................................................................. 12
160.704 ............................................................................................................. 12
160.753 ............................................................................................................. 12
162.001 et seq. ................................................................................................. 12
162.017 ............................................................................................................. 12
Tex. Health & Safety Code
313.004 ............................................................................................................... 8
RULES
Fed. R. App. P. 29 ...................................................................................................... 1
Tex. R. Evid. 504 ....................................................................................................... 8
OTHER AUTHORITIES
Carlos A. Ball, Social Science Studies and the Children of Lesbians and Gay
Men: The Rational Basis Perspective,
21 Wm. & Mary Bill Rts. J. 691 (2013) ....................................................... 19, 20
Encyc. of Contemp. Am. Soc. Issues 1182
(Michael Shally-Jensen ed., 2011) ........................................................................ 6
Gary J. Gates and Abigail M. Cooke, Texas Census Snapshot: 2010
(Williams Institute, 2010) at 3, available at
http://williamsinstitute.law.ucla.edu/wp-
content/uploads/Census2010Snapshot_Texas_v2.pdf ....................................... 25
Gary J. Gates, Same-Sex and Different-Sex Couples in the American
Community Survey: 2005-2011 (Williams Institute, 2013) at 1, available
at http://williamsinstitute.law.ucla.edu/wp-content/uploads/ACS-
2013.pdf ............................................................................................................. 25
(continued)
Page

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Melissa Murray, Marriage As Punishment,
112 Colum. L. Rev. 1 (2012) .............................................................................. 27
Michael L. Eisenberg, M.D. et al., Predictors of not Pursuing Infertility
Treatment After an Infertility Diagnosis: Examination of a Prospective
U.S. Cohort, 94 Fertility & Sterility No. 6 (2010) ................................................ 6
Sampson & Tindalls Texas Family Code Ann. (2014)
T. 1 Subt. B, Ch. 3, Subch. A, Refs & Annos .................................................... 14
T. 1 Subt. C, Ch. 6, Subch. A, Refs & Annos ...................................................... 7
T. 5, Subt. B, Ch. 160, Refs & Annos ................................................................ 28


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INTEREST OF AMI CI CURI AE
Pursuant to Federal Rule of Appellate Procedure 29(a),
1
Amici Curiaeall
scholars of family law
2
respectfully submit this brief in support of Plaintiffs-
Appellees.
3
Amici wish to provide the Court with an exposition of Texas law, as
expressed through statutes and case law, with respect to marriage, parentage, and
the well-being of childrenall of which are central to the issues before the Court.
4

SUMMARY OF ARGUMENT
The Texas Constitution and its Family Law Code (collectively, the marriage
ban) preclude same-sex couples from entering civil marriage in Texas and deny
recognition to marriages that same-sex couples have validly entered elsewhere. See
TEX. CONST. art. I32; Tex. Fam. Code2.001(b), 6.204(b).
Appellants and their amici argue that the marriage ban furthers state interests
with regard to the well-being of children. As family law scholars, Amici are
committed to promoting the welfare of children and encouraging parents to be

1
See Joint Consent by All Parties to the Filing of Amicus Briefs, Case No. 14-50196
(June 25, 2014), ECF No. 00512676816.
2
Amici professors and experts are listed in Appendix A.
3
Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no counsel for any party
authored this brief in whole or in part, and no party or counsel for any party made a monetary
contribution intended to fund the preparation or submission of this brief.
4
While Amici agree with Appellees that Texas marriage ban should be subject to
heightened scrutiny, the ban is unconstitutional under any standard of review.

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responsible for their childrens well-being. Amici agree that marriage can benefit
children by providing support and stability to their families. Texas marriage ban,
however, does not further child well-being or responsible parenting. Appellants
arguments to the contrary lack any basis in history, law, or logic.
In Texas and elsewhere, couples marry for many reasons, including a desire
for public acknowledgment of their mutual commitment to share their lives with
each other through a legally binding union. Appellants ignore the multiple purposes
of marriage, and suggest that the ability to procreate without assistance is the raison
dtre of marriage. (See Appellants Brief (Perry Br.), 2, 10, 1314 (July 28,
2014), ECF No. 00512714288.) But Texas does not and never has limited marriage
to couples who can or want to have children through natural procreation. Indeed,
it would be constitutionally impermissible to do so.
Second, Appellants and their amici argue that marriage can be limited to
couples who can provide optimized parenting and childrearing, (Br. for Amici
Curiae Texas Eagle Forum and Eagle Forum Education & Legal Defense Fund
(Eagle Br.), 19 (August 4, 2014), ECF No. 00512722003), which they claim are
environments where [children] are raised by their mother and their father, (Perry
Br. 13). But the optimal parenting arguments touted by these and other amici,
(see, e.g., Br. of Amicus Curiae Marriage Law Foundation (MLF Br.), 9 (August
4, 2014), ECF No. 00512721277), are unsupported by social science, which

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overwhelmingly demonstrates that it is the quality and nature of the parental
relationshipnot a parents gender or biological relationship to the childthat is
critical to positive child adjustment and outcomes.
5
Appellants assertion also
conflicts with Texas law, which does not view biology as the sole criterion for
parentage and rejects the notion that a parents gender is legally relevant to
determinations of childrens best interests. Further, a desire to impose gender
complementarity on parents, (Perry Br. 10), offends constitutional principles by
basing law on conformity to sex- or gender-based stereotypes. Even if promoting
natural[] procreati[on], (id.), and gender-differentiated parenting, (Br. of Amici
Curiae Social Science Professors (Soc. Br.), 5 (August 4, 2014), ECF No.
00512721194), were permissible state interests, Texas exclusion of same-sex
couples from civil marriage bears no rational relationship to the decisions of
different-sex couples regarding marriage, procreation, or childrearing.
The marriage ban actually undermines Texas interests in childrens well-
being and responsible parenting. The ban does not assist children in any family, but
it does inflict direct and palpable harms on same-sex couples and their children,
who are denied access to hundreds of important state and federal benefits. In
addition, the categorical ban signals that the relationships of same-sex couples are
deemed unequal to the relationships of other couples.

5
See Amicus Curiae Brief of the American Psychological Association, et al.

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Finally, even if there were any basis for believing that the ban would induce
better behavior and more responsible parenting by different-sex couples, Texas law
and the Supreme Court have foreclosed the punishment of children as a means to
influence adult behavior.
In sum, the purported state interests that Appellants and their amici rely on to
justify disparate treatment of different-sex and same-sex couples do not reflect the
policies that Texas law pursues regarding marriage, parentage, and the best
interests of children. As the Supreme Court recently reaffirmed, a desire to mark
same-sex couples as less worthy of respect is an insufficient interest to sustain a
law. United States v. Windsor, 133 S. Ct. 2675 (2013).
6
Accordingly, under the
federal Constitution, Appellants claims provide no rational basis for denying same-
sex couples the right to marry.
ARGUMENT
I. PROCREATION IS NOT A NECESSARY ELEMENT OF
MARRIAGE.
Appellants argue that excluding same-sex couples from marriage is justified
because, unlike many different-sex couples, they do not naturally produce
children. (Perry Br. 3.) This reductive difference is then invoked to deny same-sex

6
See Romer v. Evans, 517 U.S. 620, 632 (1996) (laws based solely on animus towards
certain classes violate equal protection clause). Animus as used in Romer is a term of art and
does not mean subjective dislike or hostility, but simply an intention to exclude a particular
group from legal protections without a rational reason for doing so.

5
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couples the right to marry. According to Appellants, marriage benefits are conferred
on different-sex couples to increase the likelihood that naturally procreative
couples will produce children, and that they will do so in the context of stable,
lasting relationships. (Perry Br. 23; see Eagle Br. 4 (describing husband-wife
marriage as the building block for responsible procreation).)
Thus, they argue, the central purpose of marriage is to lower costs imposed
on society when the procreative power of [different-sex couples] is used
irresponsibly. (Perry Br. 12.) Because the children of same-sex couples are
generally the result of lengthy reflection and financial investment, (id.),
Appellants suggest that same-sex couples do not need or deserve the incentives or
benefits of marriage to become responsible parents.
Appellants characterization of marriage is not consistent with Texas law,
the laws of other states, or the federal Constitution. An ability or desire to procreate
has never been a requirement of marriage in Texas, and, if it were, it would be
unconstitutional. Moreover, Texas extends the right to marry to different-sex
couples who are unable to procreate without assistance.
A. The Ability or Desire to Procreate Has Never Been the Defining
Feature of or a Prerequisite for a Valid Marriage.
Appellants suggestion that the right to marry is inextricably intertwined with
procreation is wrong. Texas, like all other states, has never required prospective
spouses to agree to, or even to be able to, procreate as a condition of marrying. See

6
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Tex. Family Code Ann. (T.F.C.A.)2.003, 2.004(b) (other than the different-
sex requirement, the requirements for consenting to and entering marriage are that a
person be unmarried, at least eighteen years old, and not be marrying a close
relative);
7
see also Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J.,
dissenting) ([W]hat justification could there possibly be for denying the benefits of
marriage to homosexual couples . . . ? Surely not the encouragement of procreation,
since the sterile and the elderly are allowed to marry.). Moreover, because
choosing whether or not to engage in procreative sexual activity is constitutionally
protected from state intervention, see, e.g., Griswold v. Connecticut, 381 U.S. 479,
48586 (1965), it would be unconstitutional to condition marriage on such an
ability or desire.
In Texas, as in other states, infertility (which is a very common condition)
8
is
not a basis for voiding a marriage, nor is consummation or sexual intimacy of any
kind required to validate a marriage. See T.F.C.A.6.106 et seq. (listing voidable
marriages).

7
Bigamous, incestuous, and underage marriages are void ab initio under Texas law. See
T.F.C.A. 6.201 et seq.
8
Data from 2002 show that approximately seven million women and four million men
suffer from infertility. Michael L. Eisenberg, M.D. et al., Predictors of not Pursuing Infertility
Treatment After an Infertility Diagnosis: Examination of a Prospective U.S. Cohort, 94 Fertility
& Sterility No. 6, 2369 (2010). In 1999, approximately two to three million couples were
infertile. Encyc. of Contemp. Am. Soc. Issues 1182 (Michael Shally-Jensen ed., 2011).

7
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A review of Texas statutory grounds for divorce reinforces the conclusion
that procreation is not the core purpose of marriage, much less an essential
requirement. To the extent Texas retains fault-based grounds for divorce, these
grounds do not includeand have never includedinfertility. See
T.F.C.A.6.0016.007. Moreover, Texas, like all other states, permits no-
fault divorce. T.F.C.A.6.001; see Sampson & Tindalls Texas Family Code
Ann. (Sampson & Tindall) T. 1 Subt. C, Ch. 6, Subch. A, Refs & Annos
(insupportability added to grounds for divorce in 1970). No-fault divorce is
premised on a failure of the spousal relationship as determined by the couple, not by
any State concerns about procreation or infertility. See In re Marriage of Richards,
991 S.W.2d 32, 37 (Tex. App. 1999) (a marriage becomes insupportable when
discord or conflict destroys the legitimate ends of the marriage, and . . . there is no
reasonable expectation of reconciliation).
Similarly, Appellants insistence that marriage exists primarily to encourage
the orderly propagation of the human race by channeling naturally procreative
heterosexual activity into stable, responsible relationships, (Perry Br. 10), gets no
support from Texas law. As noted above, couples who are unable to procreate can
enter into a valid marriage in Texas. See T.F.C.A.2.003, 2.004(b). In addition,
the actions required to establish a common law marriage in Texas do not include
any reference to children or an intent to procreate. See T.F.C.A.2.402 et seq.;

8
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Alonso v. Alvarez, 409 S.W.3d 754, 757 (Tex. App. 2013) (A valid informal, or
common-law, marriage consists of three elements: (1) agreement of the parties to be
married; (2) after the agreement, their living together as husband and wife; and
(3) their representing to others that they are married.).
Contrary to Appellants narrow view of marriage, in Texas, as in every other
state, marriage serves and has always served multiple purposes, the vast majority of
which do not pertain to children, but to enabling spouses to protect and foster their
personal, intimate, and mutually dependent relationship to one another. See, e.g.,
T.F.C.A.2.501 (spousal support). Married couples enjoy protections and
benefits and assume mutual responsibilities pertaining, for instance, to health care
decisions, workers compensation and pension benefits, property ownership,
spousal support, inheritance, taxation, insurance coverage, and testimonial
privileges.
9

In sum, Appellants attempts to reduce the meaning and purpose of marriage
to facilitating and protecting the fruits of procreative sexual activity are not

9
See, e.g., Tex. Health & Safety Code313.004(a)(1) (spousal right to consent to
medical care); Lewis v. Lewis, 944 S.W.2d 630 (Tex. 1997) (workers compensation is
characterized as community property); Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex. 1978)
(spousal right to claim of loss of consortium); Tex. Civ. Prac. & Rem. Code Ann.71.004
(action for wrongful death); T.F.C.A.3.003 (communal property); Tex. Estates Code
Ann.112.052, 201.002(b) (spousal right of survivorship in joint property); Tex. Estates
Code Ann.201.001, 201.002, 201.003 (spousal right to intestate succession);
T.F.C.A.8.051 (spousal right to maintenance); 26 U.S.C.A.6013 (spousal right to file
joint federal income taxes); Tex. R. Evid. 504 (spousal testimonial privilege).

9
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supported by Texas law. As the Supreme Court has explained, it would demean a
married couple were it to be said marriage is simply about the right to have sexual
intercourse. See Lawrence, 539 U.S. at 567.
B. The Constitutional Rights to Marry and to Procreate Are Distinct
and Independent.
As a matter of constitutional law, the Supreme Court declared in Turner v.
Safley, 482 U.S. 78 (1987), that individuals cannot be excluded from the right to
marry simply because they are unable to engage in procreation. The Turner Court
recognized that incarcerated prisonerseven those with no opportunity to
procreatehave a fundamental right to marry, because many important attributes
of marriage remain . . . after taking into account the limitations imposed by prison
life. Id. at 95. The Court explained that marriage has multiple purposes unrelated
to procreation, such as the expressions of emotional support and public
commitment, exercise of religious faith, expression of personal dedication,
and the receipt of government benefits. Id. at 9596.
Appellants attempt to justify the marriage exclusion under the guise of
promoting a particular method of procreation has no support. Procreative decisions
are quintessential matters of individual liberty. See, e.g., Eisenstadt v. Baird,
405 U.S. 438, 453 (1972) ([I]t is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child.); Griswold,

10
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381 U.S. at 479, 48586 (married couples have a constitutionally protected right to
engage in non-procreative sexual intimacy).
In sum, there is no historical or legal justification to support Appellants
claim that marriage exists primarily to encourage the orderly propagation of the
human race. (Perry Br. 10.)
II. A CLAIMED PREFERENCE FOR GENDER-DIFFERENTIATED
PARENTING IS CONTRADICTED BY STATE AND FEDERAL
LAW AND BY SOCIAL SCIENCE.
Appellants and their amici argue that it is permissible for Texas to limit
marriage to different-sex couples, because families headed by two married
biological parents are able to provide gender-differentiated parenting and
establish the optimal environment in which to raise children. (Soc. Br. 5; see
MLF Br. 9; Eagle Br. 19.)
10
These claims run counter to Texas as well as federal
law and social science research.
A. Texas Does Not Require a Biological Relationship to Establish a
Legal Parent-Child Relationship.
Under Texas law, there are many ways to establish a legal parent-child
relationship. A biological or genetic connection to a child is one such means, but
not always a necessary or sufficient one. For example, Texas, like all other states,

10
This effort to justify the exclusion of same-sex couples from marriage by repeating the
States preference for married different-sex parents merely circles back to the challenged
classification without justifying it. Romer, 517 U.S. at 633 (discriminatory classifications must
serve some independent and legitimate legislative end).

11
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presumes that a husband is a childs legal parent when the child is born to his wife
during their marriage. T.F.C.A.160.204(a)(1)(4). With regard to nonmarital
children, a man who is not married to a childs mother is presumed to be a legal
parent if during the first two years of the child's life, he continuously resided in the
household in which the child resided and he represented to others that the child was
his own. Id. 160.204(a)(5). These presumptions may only be rebutted in limited
circumstances. See, e.g., id. 160.204(b), 160.607, 160.608; see also In re K.M.T.,
415 S.W.3d 573 (Tex. App. 2013) (biological fathers challenge to husbands status
as childs presumed father dismissed where mother had not deceived biological
father and he did not file timely challenge); In re Rodriguez, 248 S.W.3d 444, 454
(Tex. App. 2008) (The purpose of the time limitation for bringing a proceeding to
determine parentage when a child has a presumed father is to protect the family
unit.). Even when paternity is adjudicated, proof that a presumed father is not the
biological father is not necessarily enough to rebut the presumption. A court may
decide not to order genetic testing to determine biological paternity if it would be
inequitable to disprove the father-child relationship between the child and the
presumed father. T.F.C.A.160.608(a)(2); see, e.g., Hausman v. Hausman, 199
S.W.3d 38, 44 (Tex. App. 2006); In re Shockley, 123 S.W.3d 642, 652 (Tex. App.
2003) (If a person has acted as the parent and bonded with the child, the child

12
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should not be required to suffer the potentially damaging trauma. . . from being told
that the father she has known all her life is not in fact her father.).
Texas law also allows married couples who consent to the use of assisted
reproduction or gestational surrogacy to be recognized as the legal parents of any
resulting child even if they are not the childs biological or genetic parents.
T.F.C.A.160.102(2), 160.703, 160.704 (assisted reproduction);
T.F.C.A.160.753 (gestational agreements). In addition, Texas, like every other
state, allows adults to adopt children who are not their biological offspring.
T.F.C.A.162.001 et seq. Adoptive parents are treated as equal to all other legal
parents, as [a]n order of adoption creates the parent-child relationship between the
adoptive parent and the child for all purposes. T.F.C.A.162.017.
In the context of adoption proceedings and consistent with federal
constitutional treatment of unwed fathers,
11
Texas law provides that genetic
paternity alone does not give rise to parental rights. See, e.g., In re L.M.I.,
119 S.W.3d 707, 71415 (Tex. 2003) (the Texas Supreme Court has long
recognized that any constitutional interest a putative father may claim stems from
his acceptance of the legal and moral commitment to the family, not from a mere
biological relationship.) (citing In re K., 535 S.W.2d 168, 171 (Tex. 1976), cert.

11
See, e.g., Quilloin v. Walcott, 434 U.S. 246, 254-55 (1978) (best interests standard for
child in adoption proceeding does not violate Due Process rights of biological father who showed
no commitment to parental responsibilities); Lehr v. Robertson, 463 U.S. 248, 26162 & n.19
(1983) (biological link does not automatically afford biological father adoption veto rights).

13
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denied, 429 U.S. 907 (1976)); T.F.C.A.160.201 et seq. (an unwed biological
fathers consent to his childs adoption is not required if he has not manifested a
full commitment to his parental responsibilities).
In sum, the lack of a requirement of a biological tie as a condition for
establishing legal parentage, and Texas support for non-biological legal parentage
in some instances, render implausible any contention that the marriage ban is based
on a preference for biological parenting.
B. Texas Has Eliminated Marriage Laws Based on Gender
Stereotypes.
Texas law and policy contradict Appellants and their amicis claims that
gender-differentiat[ion] or complementarity in marriage and parenting is an
important state objective. (See, e.g., Soc. Br. 5; Perry Br. 10.) Their claim that
gender remains at the core of marriage is outdated. (MLF Br. 13.) Instead, as in
every other state, marriage under Texas law is a union free of state-mandated, sex-
or gender-based distinctions in spousal roles or the incidents of marriage. Texas
child custody
12
law also treats a parents sex or gender as legally irrelevant.
Texas has eliminated the sex-specific roles that were once central to
marriage. Within Texas longstanding community property system, each spouse
now has management and control over their interests in the community property.

12
In Texas law, custody is referred to as a managing conservatorship. See, e.g.,
T.F.C.A.101.016.

14
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T.F.C.A.3.1013.102; see Sampson & Tindall, at T. 1 Subt. B, Ch. 3, Subch.
A, Refs & Annos (2014) (Matrimonial Property Act of 1967 culminated over fifty
years of legislation recognizing increasingly equal property rights for spouses).
Texas has also extended equal rights to spouses to hold and control their separate
property, enter into contracts, and to sue and be sued. See, e.g.,
T.F.C.A.1.105(a) (A spouse may sue and be sued without the joinder of the
other spouse.).
Texas has eliminated gender-based distinctions upon divorce or the death of a
spouse. As in all other states, the causes for divorce are the same for each spouse.
T.F.C.A.6.001 et seq. At divorce, Texas law presumes an equal division of the
community property, but may apportion it in due regard for the rights of each party
and any children of the marriage, without regard to gender. T.F.C.A.7.001.
Texas has rejected the gender-based rule that spousal support was only paid by the
husband to the wifenow either spouse may qualify or be held liable for support.
See T.F.C.A.2.501; Orr v. Orr, 440 U.S. 268 (1979) (holding that such rules
constitute unconstitutional sex-discrimination). Similarly, upon death, spousal
rights are equal; as a community property state, there is no concept of dower rights
for widows in Texas. Commr v. Chase Manhattan Bank, 259 F.2d 231, 241 (5th
Cir. 1958) (discussing Texas law).

15
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Parents are both equally obligated, regardless of their gender, to provide care
and support for their children. See T.F.C.A.154.001 (support obligations
without reference to gender); id. 154.010 (forbidding discrimination based on
marital status or sex); Dennis v. Smith, 962 S.W.2d 67, 69 (Tex. App. 1997) (We
have come a long way . . . . Such sex discrimination is now illegal.) (citations
omitted). Child possession and access determinationsusually referred to in
other states as custody and visitationare based on the best interests of the child,
without regard to the gender of the parents. See T.F.C.A.153.002 (setting forth
factors for court to consider in determining best interests); id. 153.003 (forbidding
discrimination based on marital status or sex); Dennis v. Smith, 962 S.W.2d at 69
([W]e have a joint managing conservator statute today. The law no longer
presumes that the mother is the better parent to raise the child.); Goodson v.
Castellanos, 214 S.W.3d 741, 753 (Tex. App. 2007) (former same-sex partner who
had adopted partners biological child could not avoid her support obligation where
the adoption afforded her equal parental claims).
As these examples demonstrate, Texas law does not inscribe gender-
differentiated roles in marriage or parenting. (Soc. Br. 5.) In fact, Texas has sought
to eliminate family law rules based on sex or gender stereotypes.

16
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C. A Desire to Promote Gender-Differentiated Parenting Is a
Constitutionally Impermissible Interest.
Beyond its inconsistency with Texas law, any effort to enforce gender-
differentiated roles in marriage or parenting would be unconstitutional. In fact,
Appellants amici attempt to justify the marriage ban on this basis: the
complementarity of an intact family, with a mother and a father serving unique
relational roles, is optimal for a childs healthy development. (Soc. Br. 5 (citations
omitted).) But this is precisely the type of overbroad generalization[] about the
different talents, capacities, or preferences of males and females that the
Constitution prohibits. United States v. Virginia, 518 U.S. 515, 533 (1996).
The Supreme Court has repeatedly held that it is impermissible to premise
laws, including family laws, on outmoded sex-based stereotypes. See, e.g.,
Califano v. Goldfarb, 430 U.S. 199, 205, 207 (1977) (holding unconstitutional
Social Security Act provisions that were premised on the archaic and overbroad
generalizations that wives in our society frequently are dependent upon their
husbands, while husbands rarely are dependent upon their wives); Weinberger v.
Wiesenfeld, 420 U.S. 636 (1975) (social security benefits); Frontiero v. Richardson,
411 U.S. 677 (1973) (military benefits); Orr, 440 U.S. 268 (holding
unconstitutional a state law imposing support obligations on husbands but not on
wives); Kirchberg v. Feenstra, 450 U.S. 455 (1981) (striking down state law that
gave husbands the unilateral right to dispose of jointly owned community property

17
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without his spouses consent); Nev. Dept of Human Res. v. Hibbs, 538 U.S. 721,
736 (2003) (approving Congresss effort to combat [s]tereotypes about womens
domestic roles [and] parallel stereotypes presuming a lack of domestic
responsibilities for men.).
Implied in Appellants and their amicis briefs is a desire to ensure that
children will be socialized into appropriate gender-roles for their biological sex.
(See, e.g., Soc. Br. 5 (emphasizing distinct roles of fathers and mothers in
socialization of the child) (citation omitted); id. at 6 (noting the differences
between maternal and paternal behavior as related to parents biological gender
or sex roles.) (quotations and citations omitted).) These alleged interests are
suspect under constitutional principles.
Almost forty years ago, the Supreme Court struck down a state law that
provided different child support obligations for girls than for boys based on
presumptions about their respective roles and destinies. Stanton v. Stanton, 421 U.S.
7, 1415 (1975) (A child, male or female, is still a child. No longer is the female
destined solely for the home and the rearing of the family, and only the male for the
marketplace and the world of ideas.); see also Stanley v. Illinois, 405 U.S. 645,
653, 657 (1972) (holding unconstitutional a state law that conclusively presumed
that all unmarried fathers were unqualified to raise their children); cf. Price
Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (As for the legal relevance of

18
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sex stereotyping, we are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched the stereotype associated
with their group, for [i]n forbidding employers to discriminate against individuals
because of their sex, Congress intended to strike at the entire spectrum of disparate
treatment of men and women resulting from sex stereotypes.) (quoting
Los Angeles Dept of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978));
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (rejecting stereotypes about
how female and male jurors differ); Miss. Univ. for Women v. Hogan, 458 U.S. 718,
729 (1982) (rejecting stereotype that only women should be nurses).
In addition, there are powerful common law traditionsbolstered by
constitutional decisionsthat protect parental autonomy, including the rights of
parents to control the care and raising of their children, and socialize them as they
see fit. See Pierce v. Socy of Sisters, 268 U.S. 510, 53435 (1925) (parents have a
right to direct the upbringing and education of [their] children); Meyer v.
Nebraska, 262 U.S. 390, 399 (1923) (the right to marry, establish a home and
bring up children is a protected liberty); Troxel v. Granville, 530 U.S. 57, 7273
(2000) ([T]he Due Process Clause does not permit a State to infringe on the
fundamental right of parents to make childrearing decisions simply because a state
judge believes a better decision could be made.).

19
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Consistent with the above, Texas approved its Equal Rights Act in 1972,
TEX. CONST. art. I3a, in order to enlarge upon federal equal protection
guarantees, see Bell v. Low Income Women of Texas, 95 S.W.3d 253, 262 (Tex.
2002), and ensure equal treatment of men and women throughout Texas family law.
D. Social Science Refutes Claims About Child Outcomes Based on
Parents Gender or Sexual Orientation.
Appellants argument about optimal childrearing is flatly contradicted by
decades of social science research. In dozens of studies, sociologists and
psychologists have found no significant differences between the long-term
outcomes for children of same-sex parents and the children of different-sex parents.
See Carlos A. Ball, Social Science Studies and the Children of Lesbians and Gay
Men: The Rational Basis Perspective, 21 Wm. & Mary Bill Rts. J. 691, 71516
(2013). These peer-reviewed studies have examined a stunning array of factors
related to childrens well-being, including their attachment to parents, emotional
adjustment, school performance, peer relations, cognitive functioning, and self-
esteem. No study has found any differences based on the sexual orientation of
childrens parents. Id. at 71617. Instead, the key factors correlated with positive
outcomes for children are the quality of the parent-child relationship and the
relationship and resources of the parents. Id. at 733 n.286. In particular, having two
involved parents rather than only onean arrangement that would be supported by
allowing parents to marryis correlated with better outcomes for children,

20
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regardless of the sexual orientation or genders of the parents. Id.; see also Amicus
Curiae Brief of the American Sociological Association.
In light of this social science consensus, courts have increasingly rejected the
optimal parenting argument. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d
921, 980 (N.D. Cal. 2010), reinstated in Hollingsworth v. Perry, 133 S. Ct. 2652
(2013) (The gender of a childs parent is not a factor in a childs adjustment. The
sexual orientation of an individual does not determine whether that individual can
be a good parent. Children raised by gay or lesbian parents are as likely as children
raised by heterosexual parents to be healthy, successful and well-adjusted. The
research supporting this conclusion is accepted beyond serious debate in the field of
developmental psychology.). All of the seventeen or more federal district court
rulings that have struck down state marriage bans since the Supreme Courts 2013
decisions in Windsor, 133 S. Ct. 2675, and Hollingsworth, 133 S. Ct. 2652, have
echoed the Perry courts conclusions. See, e.g., DeBoer v. Snyder, 973 F. Supp. 2d
757, 770 (E.D. Mich. 2014) (noting that over 150 sociological and psychological
studies have repeatedly confirmed that there is no scientific basis to differentiate
between children raised in same-sex versus heterosexual households). The Tenth
and Fourth Circuits have recently affirmed four of these district court rulings and
their conclusions concerning the social science findings. See, e.g., Kitchen v.
Herbert, 755 F.3d 1193, 1225 (10th Cir. 2014) (We cannot embrace the contention

21
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that children raised by opposite-sex parents fare better than children raised by same-
sex parents . . . .), pet. for cert. filed, 83 U.S.L.W. 3102 (U.S. Aug. 5, 2014) (No.
14-124); Bostic v. Schaefer, No 14-1167, 2014 WL 3702493, at *16 (4th Cir.
Jul. 28, 2014) ([T]he same factorsincluding family stability, economic
resources, and the quality of parent-child relationshipsare linked to childrens
positive development, whether they are raised by heterosexual, lesbian, or gay
parents.) (quoting the Amicus Br. of the American Psychological Association, et
al.), pet. for cert. filed, 83 U.S.L.W. 3102 (U.S. Aug. 8, 2014) (No. 14-153) .
In contrast, Appellants optimal parenting argument is not grounded in
science but in invalid stereotypes about how men and women parent their children.
E. Marriage Is Open to Virtually Any Different-Sex Couple,
Irrespective of Their Ability to Be Optimal Parents.
Even if, arguendo, there were differences in how children fare between those
raised by married heterosexual couples and those raised by cohabiting same-sex
couples, it is not permissible to rely on any such differences as justification for
singling out same-sex couples and excluding them from the right to marry. No other
couples are denied the right to marry based on a belief that they will not provide an
optimal setting for the raising of children. To obtain a marriage license under Texas
law, couples do not have to prove their ability to have children, raise them in any
particular family structure, or achieve specific state-endorsed outcomes for their
children. See T.F.C.A.2.002 et seq.; Kitchen v. Herbert, 755 F.3d at 122425

22
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(The state does not restrict the right to marry or its recognition of marriage based
on compliance with any set of parenting roles, or even parenting quality.). As
referenced in other amici briefs, parental resources are associated with better
outcomes for children, but no one would suggest that lower- or middle-income
people should be barred from marrying. The complete bar on marriage for all same-
sex couples [makes] no sense in light of how [Texas] treat[s] other groups
similarly situated in relevant respects. Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 366 n.4 (2001) (citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 44750 (1985)).
The Supreme Court has also recognized that whether members of a couple
would be good parents, or whether they could even provide support for children, are
not permissible bases upon which to deny them the right to marry. In Zablocki v.
Redhail, 434 U.S. 374 (1978), Wisconsin sought to deny marriage licenses to
parents the state considered irresponsible because they had failed to pay child
support, but the Court held that conditioning marriage on a persons parenting
behavior was an unconstitutional infringement of the right to marry. Id. at 386,
38889. In this vein, courts have rejected the optimal child-rearing theory in part
because marriage is not and cannot be restricted to individuals who would be
good parents. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 900 (Iowa 2009)
(noting that Iowa did not exclude from marriage other groups of parentssuch as

23
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child abusers, sexual predators, parents neglecting to provide child support, and
violent felonsthat are undeniably less than optimal parents).
Excluding same-sex couples from marriage and all of its attendant legal
protections because they allegedly do not provide a certain kind of parenting, when
different sex couples are not required to have children at allmuch less biological
childrenimposes significant burdens on same-sex couples. A desire to mark the
relationships and parenting abilities of same-sex couples as less worthy of respect is
an impermissible interest, under any standard of constitutional review. Windsor,
133 S. Ct. at 269596.
III. TEXAS MARRIAGE BAN BEARS NO RATIONAL RELATIONSHIP
TO THE WELL-BEING OF CHILDREN.
There is no rational or logical connection between Texas marriage ban and
any of the purported interests identified by Appellants and their amici. It is utterly
implausible to believe that barring recognition of married same-sex couples and
their children improves the well-being of children raised by different-sex couples.
The ban does, however, cause clear and direct harm to the children of same-sex
parents.
A. The Marriage Ban Does Nothing to Further the Well-being of
Children Raised by Different-Sex Couples.
Appellants claim that Texas has an interest in encourag[ing] the orderly
propagation of the human race by channeling naturally procreative heterosexual
activity into marriage. (Perry Br. 10.) Allegedly, the State also has an interest in

24
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the best interests of children, for whom it seek[s] optimized parenting and
childrearing outcomes. (See, e.g., Eagle Br. 19.)
Insofar as marriage laws may encourage different-sex couples to marry, there
is no basis in logic or social experience to suppose that such couples will lose
respect for the institution if same-sex couples are permitted to marry in Texas.
Likewise, there is no logical reason to believe that permitting same-sex couples to
marry would have any influence on the marital or procreative decisions of
different-sex couples, much less cause these couples to care less about their
children, suffer a decline in fertility, or have more extramarital affairs. These
suppositions, which are central to Appellants and their amicis arguments, (see,
e.g., Perry Br. 2, 14), make sense only if same-sex relationships are so abhorrent as
to contaminate the institution of marriage to the point that different-sex couples will
shun it.
Courts have rejected this very argument, because there is no logical
connection between the means and the purported end. See, e.g., Kitchen, 755 F.3d at
1223 ([I]t is wholly illogical to believe that state recognition of the love and
commitment between same-sex couples will alter the most intimate and personal
decisions of opposite-sex couples.); De Leon v. Perry, 975 F. Supp. 2d 632, 655
(W.D. Tex. 2014) ([T]he Court finds the argument that allowing same-sex couples
to marry will undermine procreation is nothing more than an unsupported

25
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overbroad generalization that cannot be a basis for upholding discriminatory
legislation.); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1145 (D. Or. 2014)
(Opposite-gender couples will continue to choose to have children responsibly or
not, and those considerations are not impacted in any way by whether same-gender
couples are allowed to marry.).
Appellants attempt to justify barring committed same-sex couples from
marriage, stigmatizing them and their children, and denying them access to
substantial state and federal benefits, on the imaginary basis that this will make
marriage more attractive to different-sex couples.
B. The Marriage Ban Harms the Well-being of Children Raised by
Same-Sex Couples.
Although there is not even a rational reason to think that the marriage ban
will have any positive effect on the children of different-sex couples, it is certain to
harm the children of same-sex couples by denying their families access to hundreds
of critical state and federal benefits that are conducive to providing stable and
secure environments for raising children.
13
Some of Appellants amici make the
callous assertion that because a relatively small number of these children live in

13
As of 2011, about one in five same-sex couples were raising children under age 18.
Gary J. Gates, Same-Sex and Different-Sex Couples in the American Community Survey: 2005-
2011 (Williams Institute, 2013) at 1, available at http://williamsinstitute.law.ucla.edu/wp-
content/uploads/ACS-2013.pdf. In 2010, there were nearly 46,500 same-sex couples in Texas,
with almost 9,200 of them raising children. Gary J. Gates and Abigail M. Cooke, Texas Census
Snapshot: 2010 (Williams Institute, 2010) at 3, available at http://williamsinstitute.law.
ucla.edu/wp-content/uploads/Census2010Snapshot_Texas_v2.pdf.

26
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Texas, the State may exclude their families from marriage (see Eagle Br. 19) and
thereby deny them the multiple benefits of being recognized as the legal children of
both their parents. As the District Court striking down Idahos marriage ban
properly determined, [i]n this most glaring regard, [the marriage bans] fail to
advance the States interest because they withhold legal, financial, and social
benefits from the very group they purportedly protectchildren. Latta v. Otter,
No. 1:13-cv-00482, 2014 WL 1909999, at *24 (D. Idaho May 13, 2014).
The marriage ban also amounts to an official statement that the family
relationship of same-sex couples is not of comparable stature or equal dignity to
that of married couples. In re Marriage Cases, 183 P.3d 384, 445, 452 (Cal. 2008).
This stigma leads children to understand that the State considers their gay and
lesbian parents to be unworthy of participating in the institution of marriage and
devalues their families compared to families that are headed by married
heterosexuals. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 963 (Mass.
2003). As Appellants amici note, it implicitly and inherently tells these children
that their families constitute non-favored relationships, (Eagle Br. 19 n.7), and
that they simply do not count.
In this way, the marriage ban does significant tangible and intangible harm to
the children of same-sex couples.

27
sf-3447225
C. Denying Rights and Protections to Children Is a Constitutionally
Impermissible Means of Influencing Their Parents Behavior.
Even if there were a reasonably conceivable connection between the
marriage ban and increasing the marriage rates of heterosexual couples or the
number of children born to married heterosexual couples, punishing innocent
children is an impermissible means of trying to influence the behavior of adults.
Texas marriage ban functions in a way that is remarkably similar to the
manner by which children born out-of-wedlock were denied legal and economic
protections and stigmatized under now-repudiated laws in Texas and most other
states regarding illegitimate children. Historically, state parentage laws saddled
the children of unwed parents with the demeaning status of illegitimacy and
denied these children important rights in an effort to shame their parents into
marrying one another. See Melissa Murray, Marriage As Punishment, 112 Colum.
L. Rev. 1, 33 n.165 (2012) (marriage was offered as a way to lead unwed mothers
away from vice towards the path of virtue). Rights that were denied to
illegitimate children included the right to a relationship with and support from
their fathers, intestate succession, and compensation for wrongful death or injury to
their fathers. Texas generally subjected out-of-wedlock children to the same harsh
treatment they endured in other states. See, e.g., In re J.W.T., 872 S.W.2d 189, 192
(Tex. 1994) (recounting prior Texas common law rule that children of unmarried
parents, while they are [the fathers] children in fact, the rules of the common law

28
sf-3447225
refuse to recognize them as his children) (citing Lane v. Phillips, 6 S.W. 610, 611
(Tex. 1887).
Since the late 1960s, however, the Supreme Court has repudiated laws that
discriminate against children based on outmoded concepts of illegitimacy. In
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972), for example, the Court found
that
imposing disabilities on the illegitimate child is contrary to the
basic concept of our system that legal burdens should bear
some relationship to individual responsibility or wrongdoing.
Obviously, no child is responsible for his birth and penalizing
the illegitimate child is an ineffectualas well as an unjust
way of deterring the parent.
Id. at 175; see also Levy v. Louisiana, 391 U.S. 68 (1968); Gomez v. Perez,
409 U.S. 535, 538 (1973) (per curiam) (Texas court's denial of child support for
nonmarital children is unconstitutional because a state cannot invidiously
discriminate against illegitimate children).
Consistent with this directive, Texas recognizes that children of unmarried
parents are entitled to the same rights as children born to married parents. Texas
was the first state to adopt the Revised Uniform Parentage Act of 2000 (UPA) and
some of its subsequent amendments. See Sampson & Tindall, at T. 5, Subt. B, Ch.
160, Refs & Annos. The Texas UPA provides that [a] child born to parents who
are not married to each other has the same rights under the law as a child born to
parents who are married to each other. T.F.C.A.160.202; see, e.g., Tex. Estates

29
sf-3447225
Code Ann.201.051, 201.052 (intestacy provisions include nonmarital
children). Texas also imposes child support obligations on all parents regardless of
their marital status (or their gender). T.F.C.A.154.010.
Texas law does not support the proposition that it is permissible to deny
critical benefits and security to some children in order to make the families of other
children more stable or secure. Accordingly, Appellants and their amicis argument
that Texas marriage ban can be justified as an effort to encourage responsible
biological, gender-differentiated parenting by making marriage exclusively
available to heterosexuals is fundamentally at odds with Texas strong policy of
equal treatment for all children. It is also logically inconsistent. Appellants claim
that responsible procreation and childrearing are fundamental goals of marriage and
that same-sex couples are, necessarily, responsible when it comes to becoming
parents, see p. 5, supra; yet, in the words of Judge Posner, their reward is to be
denied the right to marry. Go figure. Baskin v. Bogan, No. 14-2396, 2014 WL
4359059, at *21 (7th Cir. Sept. 4, 2014) (affirming the district court in striking
down Indianas marriage ban).
In exchange for the marriage bans wholly speculative benefit for the
children of heterosexual couples, other childrenthose raised by same-sex
couplespay the price. This is a legally unacceptable result.

30
sf-3447225
CONCLUSION
For the foregoing reasons, Amici ask that this Court affirm the district courts
decision.

Dated: September 16, 2014 Respectfully submitted,

MORRISON & FOERSTER LLP
By: s/ Sara Bartel
Sara Bartel
425 Market Street
Tel: (415) 268-6000
Fax: (415) 268-7522


sf-3447225

Sarah Abramowicz
Assistant Professor of Law
Wayne State University

Jamie R. Abrams
Louis D. Brandeis School of Law
University of Louisville

Kerry Abrams
Albert Clark Tate, Jr. Professor of Law
University of Virginia School of Law

Ralph Richard Banks
Jackson Eli Reynolds Professor of Law
Stanford Law School

Marianne Blair
Professor of Law
University of Tulsa College of Law

Christopher Blakesley
Barrick Distinguished Scholar &
Cobeaga Law Firm Professor of Law
University of Nevada Las Vegas
Boyd School of Law

Grace Ganz Blumberg
Distinguished Professor of Law,
Emerita
UCLA School of Law

Cynthia Grant Bowman
Professor of Law
Cornell Law School

Kathryn Webb Bradley
Professor of the Practice of Law
Director of Legal Ethics
Duke Law School

Elizabeth Brandt
James E. Wilson Distinguished
Professor of Law
University of Idaho College of Law

Tonya L. Brito
Associate Dean for Research and
Faculty Development
Jefferson Burrus-Bascom Professor of
Law
Director, Institute for Legal Studies
University of Wisconsin Law School

Penelope Bryan
Dean and Professor of Law
Whittier Law School

Mary Patricia Byrn
Associate Dean and Professor of Law
William Mitchell College of Law

Naomi Cahn
Harold H. Greene Professor of Law
GWU Law School

Patricia A. Cain
Professor of Law
Santa Clara University
Aliber Family Chair in Law Emerita
University of Iowa

APPENDIX A
14

14
University affiliations of the professors are given for identification
purposes only, and imply no endorsement by the universities.

sf-3447225
David L. Chambers
Wade H. and Dores M. McCree
Professor of Law, Emeritus
University of Michigan Law School

Karen Czapanskiy
Francis & Harriet Iglehart Research
Professor of Law
University of Maryland
Francis King Carey School of Law

Anne C. Dailey
Evangeline Starr Professor of Law
University of Connecticut
School of Law

Nancy E. Dowd
David H. Levin Chair in Family Law
Director, Center on Children &
Families Professor of Law
University of Florida Levin College of
Law

Dr. Jennifer A. Drobac
Professor of Law
Indiana University
Robert H. McKinney School of Law

Donald N. Duquette
Clinical Professor of Law
Director, National Quality Improvement
Center on the Representation of
Children in the Child Welfare
System

Ira Mark Ellman
Charles J. Merriam Distinguished
Professor of Law and
Affiliate Professor of Psychology
Arizona State University
Sandra Day O'Connor College of Law

Linda Henry Elrod
Richard S. Righter Distinguished
Professor of Law
Director, Washburn Law School
Children and Family Law Center
Washburn University School of Law

Martha M. Ertman
Carole & Hanan Sibel Research
Professor
Francis King Carey Law School

Katherine Hunt Federle
Professor of Law
Director, Center for Interdisciplinary
Law and Policy Studies
Michael E. Moritz College of Law

Zanita E. Fenton
Professor of Law
University of Miami School of Law

Martha Albertson Fineman
Robert W. Woodruff Professor
Director of the Feminism and Legal
Theory Project and the Vulnerability
and the Human Condition Initiative
Emory University School of Law


sf-3447225
Louise Graham
Robert G. Lawson and William H.
Fortune Professor of Law
University of Kentucky College of Law

Amy Halbrook
Director of the Children's Law Center
Clinic

Vivian E. Hamilton
Professor of Law
William and Mary School of Law

Meredith Harbach
Professor of Law
University of Richmond

Leslie J. Harris
Dorothy Kliks Fones Professor
School of Law
University of Oregon

Jennifer Hendricks
Associate Professor
University of Colorado Law School

Michael J. Higdon
Director of Legal Writing and
Associate Professor of Law
University of Tennessee College of Law

Joan Heifetz Hollinger
John and Elizabeth Boalt Lecturer in
Residence,
University of California, Berkeley
School of Law

Lisa C. Ikemoto
Professor of Law
Martin Luther King, Jr. Research
Scholar
University of California, Davis
School of Law

Melanie B. Jacobs
Associate Dean for Graduate and
International Programs
Professor of Law
Michigan State University College of
Law

Courtney G. Joslin
Professor of Law
University of California, Davis
School of Law

Herma Hill Kay
Barbara Nachtrieb Armstrong Professor
of Law
School of Law

Laura T. Kessler
Professor of Law
S.J. Quinney College of Law
University of Utah

Kay P. Kindred
Sara and Ralph Denton Professor of
Law
William S. Boyd School of Law
University of Nevada, Las Vegas

Charles Kindregan
Professor of Family Law
Suffolk University Law School

sf-3447225
Kristine S. Knaplund
Professor of Law
Pepperdine University School of Law

Elizabeth L. MacDowell
Director, Family Justice Clinic
William S. Boyd School of Law, UNLV

Maya Manian
Professor of Law
University of San Francisco
School of Law
Inga Markovits
The Friends of Joe Jamail Regents
Chair
University of Texas School of Law

Ellen Marrus
George Butler Research Professor of
Law
Director; Center for Children, Law &
Policy
University of Houston Law Center

Nancy G. Maxwell
Professor of Law
Washburn University School of Law

Jennifer B. Mertus
Professor of Legal Writing
Director, Center for Children's Rights
Director, China Study Abroad Program
Whittier Law School

Kenyatta Mickles
Assistant Professor of Clinical Law
Director of Domestic Violence Clinic
University of Cincinnati College of Law
Melissa Murray
Professor of Law

Douglas NeJaime
Professor of Law
UC Irvine School of Law

Angela Onwuachi-Willig
Charles M. and Marion J. Kierscht
Professor of Law
University of Iowa College of Law

Laura Oren
Professor Emerita
University of Houston Law Center

Dorothy E. Roberts
George A. Weiss University Professor
of Law and Sociology
Raymond Pace and Sadie Tanner
Mossell Alexander Professor of
Civil Rights
Professor of Africana Studies
Director, Program on Race, Science,
and Society
University of Pennsylvania

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School

Anbal Rosario Lebrn
Visiting Assistant Professor
Louis D. Brandeis School of Law
University of Louisville


sf-3447225
Laura A. Rosenbury
Professor of Law
John S. Lehmann Research Professor
Washington University School of Law

Clifford Rosky
Professor of Law
S.J. Quinney College of Law
University of Utah

Jack Sampson
Professor of Law
Austin, Texas

Suelyn Scarnecchia

Rebecca L. Scharf
William S. Boyd School of Law
University of Nevada, Las Vegas

Julie Shapiro
Professor of Law
Faculty Fellow, Fred T. Korematsu
Center for Law and Equality
Seattle University School of Law

Jana Singer
Professor of Law
Frances King Carey School of Law

Catherine Smith
Associate Dean of Institutional
Diversity and Inclusiveness
Professor of Law
University of Denver Sturm College of
Law

Barbara J. Stark
Professor of Law
Maurice A. Deane School of Law
Hofstra University

Mark Strasser
Trustees Professor of Law
Capital University Law School

Harry L. Tindall, Esq.
Chair, Revised Uniform Parentage Act
Co-Editor, Sampson & Tindall, Texas
Family Code Annotated

Frank Vandervort
Child Advocacy Law Clinic
Juvenile Justice Law Clinic
University of Michigan Law

Michael S. Wald
Jackson Eli Reynolds Professor of Law,
Emeritus
Stanford Law School

D. Kelly Weisberg
Professor of Law
Hastings College of the Law
San Francisco, CA


sf-3447225
Lois A. Weithorn
Professor of Law
UC Hastings College of the Law

Sean Hannon Williams
Professor of Law

Verna L. Williams
Judge Joseph P. Kinneary Professor of
Law
Co-Director, Center for Race, Gender,
and Social Justice
University of Cincinnati College of Law

Wendy W. Williams
Professor Emerita
Georgetown University Law Center

Barbara Bennett Woodhouse
L. Q. C. Lamar Professor of Law
Emory University School of Law

sf-3447225
No. 14-50196
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

CERTIFICATE OF SERVICE
I certify that on September 16, 2014 the foregoing document
was filed electronically with the Clerk of Court for the United States Court of
Appeals for the Fifth Circuit through the CM/ECF system. I certify that service
will be accomplished by the CM/ECF system for all counsel of record.

Dated: September 16, 2014

s/ Sara Bartel
Sara Bartel



sf-3447225
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of FED. R. APP. P.
32(a)(7)(B) because:
this brief contains 6,987 words, excluding the parts of the
brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii), or
this brief uses a monospaced typeface and contains
lines of text, excluding the parts of the brief exempted by FED. R. APP. P.
32(a)(7)(B)(iii).
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
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Dated: September 16, 2014

s/ Sara Bartel
Sara Bartel
425 Market Street
Tel: (415) 268-6000
Fax: (415) 268-7522



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