Agudath Israel of America Amicus Brief - Mass DOMA Cases

Case: 10-2204 Document: 00116163993 Page: 1 Date Filed: 01/28/2011 Entry ID: 5522206
Nos. 10-2204, 10-2207, and 10-2214

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants-Appellants.
_____________________________________________________________________
DEAN HARA,
Plaintiff-Appellee/Cross-Appellant,
NANCY GILL, et al.,
Plaintiffs-Appellees,
KEITH TONEY; ALBERT TONEY, III,
Plaintiffs,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants-Appellants/Cross-Appellees,
HILARY RODHAM CLINTON,
in her official capacity as United States Secretary of State,
Defendant.
Appeals from the United States District Court for the District of Massachusetts
Civil Case Nos. 1:09-cv-11156-JLT, 1:09-cv-10309-JLT (Hon. Joseph L. Tauro)
Brief Amicus Curiae of Agudath Israel of America.
In Support of Defendants-Appellants and in Support of Reversal
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Abba Cohen
Russell D. Raskin* AGUDATH ISRAEL OF AMERICA
RASKIN & BERMAN 1730 Rhode Island Avenue
116 East Manning Street Washington, D.C. 20036
Providence, RI 02906 202-835-0414
(401) 421 1363 x 19
--and--
Mordechai Biser
AGUDATH ISRAEL OF AMERICA
42 Broadway
New York, NY 10004
(212) 797-9000
* Counsel of Record
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned

counsel of record identifies the following corporate information with respect to
amicus curiae:
Agudath Israel or America is a nonprofit corporation that has no parent
corporation and issues no stock.
s/ Mordechai Biser
Mordechai Biser
Counsel for the Amicus Curiae
January 27, 2011
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ....................................................... iii
TABLE OF AUTHORITIES .....................................................................................v
STATEMENT OF INTEREST OF AMICUS CURIAE ..........................................1
I. INTRODUCTION .................................................................................................3
II. ARGUMENT ........................................................................................................5
A. LAWS THAT REFLECT AND PROMOTE STANDARDS OF

MORALITY CONSTITUTE A RATIONAL BASIS, AND EVEN A
COMPELLING GOVERNMENTAL INTEREST …………………...……5
B. GOVERNMENT‘S INTEREST IN PROMOTING PROCREATION AND

THE RAISING OF WELL-ADJUSTED CHILDREN IS A RATIONAL
BASIS FOR DOMA ………………………………………………………19
III. CONCLUSION ..................................................................................................30
CERTIFICATE OF COMPLIANCE .......................................................................32
CERTIFICATE OF SERVICE ………………………………………...…………33
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TABLE OF AUTHORITIES
Cases Page
1568 Montgomery Highway, Inc. v. City of Hoover, 45 So. 3d 319 (Ala. 2010) ...12
Andersen v. King County, 158 Wash. 2d 1, 37, 138 P.3d 963, 983 (2006) ……...21
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ……………………………….6
Bowers v. Hardwick, 478 U.S. 186 (1986) ………………………………………..7
Carey v. Population Services, Int'l, 431 U.S. 678 (1977) …………..……………10
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ……....….….………………...……..11
Dean v. District of Columbia, 653 A.2d 307 (D.C.App. 1995) ………................14
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ………..….………...…...28
Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010) ……….…….3
Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941(2003) …..…21
Heller v. Doe, 509 U.S. 312 (1993) …..….………..….………………………….10
Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (2006) ……..….……………...8
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Hoke v. United States, 227 U.S. 308 (1913) …………………………….…....……6
Lawrence v. Texas, 539 U.S. 558 (2003) ………..………………………………...5
Lofton v. Sec'y of Dept. of Children & Family Servs., 358 F.3d 804 (11th Cir.
2004) ………………………………………………………………………………9
Loving v. Virginia, 388 U.S. 1 (1967) ……...….....…………....…….…….….…23
Massachusetts v. U.S. Dept. of Health & Human Servs., 698 F. Supp. 2d 234 (D.
Mass. 2010) ……………..…………………………………………….…………..3
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) …….…..13
Maynard v. Hill, 125 U.S. 190 (1888) …….….….……………………………….14
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ….….….…..……………..…6
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ………………....10
Potter v. Murray City, 760 F.2d 1065 (10th Cir.) …………………………..……15
Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008) .……………....12
Roe v. Wade, 410 U.S. 113 (1973) ……………………...…………………….....10
Romer v. Evans, 517 U.S. 620 (1996) ……………………………………………10
Roth v. United States, 354 U.S. 476 (1957) …………………………………....… 6
Skinner v. Oklahoma, 316 U.S. 535 (1942) ….…………………………..……….23
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United States v. Stagliano, 693 F. Supp. 2d 25 (D.D.C. 2010) …………….…….10
Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007) …..………..…..………..11
Zablocki v. Redhail, 434 U.S. 374 (1978) …………..…………………...………14
Other Authorities
Babylonian Talmud, Tractate Sanhedrin, 58a …………...…………………….....23
D. BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT

SOCIAL PROBLEM 25 (1995) ………………………………….…………….…….27
Defense of Marriage Act of 1996: Hearing on S. 1740 Before the Senate Judiciary
Comm., 104th Cong. (1996) (statement of David Zwiebel, General Counsel,
Agudath Israel of America) ……………………………………………………….1
Genesis, 2:24 …………………………………………………...………..………23
H. Elaine Rodney & Robert Mupier, Behavioral Differences between African

American Male Adolescents with Biological Fathers and Those Without Biological
Fathers in the Home, 30 J. Black Stud. 45, 53 (1999) …………………..………26
John P. Hoffmann & Robert A. Johnson, A National Portrait of Family Structure

and Adolescent Drug Use, 60 J. Marriage & Fam. 633 (1998) ………………….27
Lynne Marie Kohm, The Homosexual “Union”: Should Gay and Lesbian
Partnerships be Granted the Same Status as Marriage?, 22 J. Contemp. L. 51, 61
& nn. 53, 54 (1996) ………………………………………….…………………...25
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Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and

Homosexuality, 77 Cal. L. Rev. 521 (1989) ……………………………………...16
Michael W. McConnell, The Role of Democratic Politics in Transforming Moral

Convictions Into Law, 98 Yale L.J. 1201 (1989) …………………………..….…16
PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 10, 13 (Oxford U. P. 1965) …16
Roland J.Chilton & Gerald E. Markle, Family Disruption, Delinquent Conduct and
the Effect of Subclassification, 37 Am. Soc. Rev. 93, 95 (1972) ………...……...27
Romania Eyes Legalizing Consensual Incest, Wouldn't Be First Country in Europe,

Fox News, Mar. 21, 2009 http://www.foxnews.com/story/0,2933,510016,00.html,
(last visited Jan. 17, 2011) …………………………………………..…………18
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INTEREST OF THE AMICUS CURIAE
Amicus curiae Agudath Israel of America, founded in 1922, is a national
grassroots Orthodox Jewish organization with constituents all across the United
States, including Massachusetts.
Our involvement in protecting the valuable institution of traditional marriage
through DOMA dates back to the Senate Judiciary Committee hearings on the then
proposed DOMA bill. At the hearings, we testified that ―[l]legalizing same-sex
marriages . . . would obscure further the vital link between marriage and children .
. . [and] convey the messages that childbearing and childrearing are matters
entirely distinct from marriage.‖ Defense of Marriage Act of 1996: Hearing on S.
1740 Before the Senate Judiciary Comm., 104th Cong. (1996) (statement of David
Zwiebel, General Counsel, Agudath Israel of America). The decision of the court
below ignores this telling consideration.
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Further, we are deeply concerned about the potential far-reaching
consequences of a decision that refuses to assign any weight to traditional notions
of morality in determining the constitutional validity of legislation.
As discussed more fully in our arguments that follow, the possible
ramifications of such a ruling extend far beyond the current same-sex marriage
debate; it would affect the legal underpinnings of many, if not all, similar morality-
based laws. We view such prospect with considerable alarm.
Accordingly, while this case raises a number of other important issues as
well, our focus as amicus curiae will be primarily on the narrow, but fundamental,
issue of the constitutionally proper role of public morality in the legislative process
of lawmaking.
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INTRODUCTION
The district court asserted two constitutional bases for striking down the
Defense of Marriage Act (―DOMA‖): equal protection Gill v. Office of Pers.
Mgmt., 699 F. Supp. 2d 374, 377 (D. Mass. 2010) and federalism restrictions
Massachusetts v. U.S. Dept. of Health & Human Servs., 698 F. Supp. 2d 234, 238
(D. Mass. 2010). In the equal protection analysis, the court held that there was no
possible rational basis to distinguish between a marriage encompassing the rich
diversity of both genders and a marriage consisting of a duplicate of the same
gender. In other words, the traditional notion of marriage, biblically referenced
and accepted almost universally by modern society throughout history, is,
according to the court, totally devoid of any rationale. We respectfully urge this
court to eschew such a radical interpretation of our common history.
Section A of this brief provides clear and continuous judicial precedent to
the notion that society‘s long-held moral traditions constitute a rational basis on
which to enact legislation. It also emphasizes the broader stakes that are affected
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by the court‘s ruling on this issue. Section B shows why marriage consisting of a
man and a woman is critical to the procreation and healthy upbringing of children,
and is thus not an irrational basis for Congress‘s definition of marriage.
We have received consent from all parties to file this brief.
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ARGUMENT
A. LAWS THAT REFLECT AND PROMOTE STANDARDS OF

MORALITY CONSTITUTE A RATIONAL BASIS, AND EVEN A
COMPELLING GOVERNMENTAL INTEREST
In its equal protection analysis of DOMA, the district court could not fathom
a single ―fairly conceivable set of facts that could ground a rational relationship
between DOMA and a legitimate government objective.‖ Gill v. Office of Pers.
Mgmt., 699 F. Supp. 2d 374, 387 (D. Mass. 2010) (internal quotations and citations
omitted). The court held that ―the objective of defending traditional notions of
morality‖ was not a sufficiently rational reason to sustain a law passed by the
majority of Congress. Id. at 389. This holding was based on the court‘s cursory
reading of Lawrence v. Texas’, 539 U.S. 558, 577 (2003), statement that ―the fact
that the governing majority in a State has traditionally viewed a particular practice
as immoral is not a sufficient reason for upholding a law . . . .‖ However, a careful
review of Lawrence, and the case law that preceded and succeeded that decision,
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clearly shows that morality considerations remain a legitimate rational basis for
government enactment of laws--especially marriage-related laws.
The Supreme Court has long held that ―[t]here is unquestionably a control in
the states over the morals of their citizens . . . .‖ Hoke v. United States, 227 U.S.
308, 321 (1913) (upholding federal laws against prostitution and finding that the
―powers reserved to the states and those conferred on the nation are . . . to promote
the general welfare, material and moral‖) (emphasis added). The Court accepted
that ―a legislature could legitimately act on such a conclusion to protect ‗the social
interest in order and morality.‘‖ Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61
(1973) (quoting Roth v. United States, 354 U.S. 476, 485 (1957)) (upholding
indecency laws against a First Amendment challenge). ―The traditional police
power of the States is defined as the authority to provide for the public health,
safety, and morals, and we have upheld such a basis for legislation.‖ Barnes v.
Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (upholding indecency statute against
a First Amendment challenge where the ―statute's purpose of protecting societal
order and morality is clear from its text and history.‖) (emphasis added).
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Legislation based on moral grounds is also sufficient to protect a statute
from equal protections violations. The Court so held in Bowers v. Hardwick, 478
U.S. 186, 196 (1986) and was not overruled in this respect by Lawrence v. Texas,
539 U.S. 558 (2003). In Bowers, the Court explicitly held that a belief by the
majority of the electorate that homosexual behavior was immoral was adequate
rationale to support a rational basis for a statute outlawing homosexual acts.
Bowers, 478 U.S. at 196 (―The law, however, is constantly based on notions of
morality, and if all laws representing essentially moral choices are to be invalidated
under the Due Process Clause, the courts will be very busy indeed.‖) .
Although the Court later overruled Bowers in Lawrence, the above holding
of Bowers was not overruled, and remains binding law. Lawrence overruled
Bowers and held that the state could not justify the criminalization of homosexual
acts solely based on moral grounds. Lawrence 539 U.S. at 571 (―The issue is
whether the majority may use the power of the State to enforce these views on the
whole society through operation of the criminal law.‖); id. at 577 (morality
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concerns are ―not a sufficient reason for upholding a law prohibiting the practice.‖
) (emphasis added).
But Lawrence did not hold that moral considerations must be totally
disregarded in determining state-sanctioned social ideals. Lawrence‘s holding was
confined to whether moral considerations are sufficient grounds for the state to
prohibit certain acts using criminal law; it did not hold that moral considerations
have no relevance in the milieu of considerations a legislature may consider in
crafting law. Indeed, Lawrence itself clearly differentiated between laws ―making
private sexual conduct a crime,‖ and laws giving ―formal recognition to any
relationship that homosexual persons seek to enter.‖ Lawrence, 539 U.S. at 578
(emphasis added); See also, Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1, 18
(2006) (Graffeo, J. concurring):
The right affirmed by the Supreme Court in Lawrence is not

comparable to the new right to marry plaintiffs assert here, nor is the Texas
statute criminalizing homosexual sodomy analogous to the marriage statutes
under review. The Domestic Relations Law is not a penal provision and New
York has not attempted to regulate plaintiffs' private sexual conduct or
disturb the sanctity of their homes.
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(upholding New York‘s marriage laws to opposite-sex couples); Lofton v. Sec'y of
Dept. of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004)
(distinguishing between criminal prohibitions and statutory recognitions) (―The
relevant state action is not criminal prohibition, but grant of a statutory privilege.
And the asserted liberty interest is not the negative right to engage in private
conduct without facing criminal sanctions, but the affirmative right to receive
official and public recognition.‖).
Laws that prohibit private conduct, such as those in Lawrence, are subject to
a higher level of scrutiny than laws that merely confer an official recognition of a
valuable social entity, such as DOMA. The reason for the different treatment is that
laws prohibiting private conduct impinge on the Due Process right to liberty, see
Lawrence, 539 U.S. at 578 (―Their right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without intervention of the
government.‖), while laws that confer privileges do not restrict a person‘s Due
Process liberty interests, and thus, need only conform to equal protections
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standards of rational basis.1 ―It is conventional constitutional doctrine that where
reasonable people disagree the government can adopt one position or the other.
That theorem, however, assumes a state of affairs in which the choice does not
intrude upon a protected liberty.‖ Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 851 (1992) (internal citations omitted.); see also, United States v.
Stagliano, 693 F. Supp. 2d 25, 38 (D.D.C. 2010) (―Although public morality may
be an insufficient justification for regulating private conduct in some cases, it is
certainly a sufficient justification for regulating the sort of public conduct at issue
here.‖) (holding that ―government's interest in morality is a sufficient justification
for regulating the public dissemination of obscenity.‖).
Thus, the fact that Lawrence found morality to be an insufficient reason to
uphold criminal sodomy laws in a Due Process liberty analysis does not mean that
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Liberty rights may only be limited if there is a ―compelling state interest, and th[e]
legislative enactments must be narrowly drawn to express only the legitimate state interests at
stake.‖ Roe v. Wade, 410 U.S. 113, 155 (1973) (internal citations and quotations omitted.); see
also Carey v. Population Services, Int'l, 431 U.S. 678, 688-89 (1977). Equal protection rights,
on the other hand, will pass constitutional muster as long as the law ―neither burdens a
fundamental right nor targets a suspect class‖ and ―bears a rational relation to some legitimate
end‖ Romer v. Evans, 517 U.S. 620, 631, (1996); see also, e.g., Heller v. Doe, 509 U.S. 312,
319-320 (1993).
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morality considerations are cast aside in an equal protection context. This Court
has previously confirmed that ―the Lawrence Court explicitly declined to base its
ruling on equal protection principles, even though that issue was presented.‖ Cook
v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (holding that the ―Don‘t Ask, Don‘t Tell‖
Act did not violate equal protection principles).
Many other courts have also affirmed the continuing vitality of moral
considerations in rational basis review, even post-Lawrence. The Eleventh Circuit,
in Williams v. Morgan, 478 F.3d 1316, 1318 (11th Cir. 2007), considered ―whether
public morality remains a sufficient rational basis for [a] challenged statute after
the Supreme Court‘s decision in Lawrence.‖ The case involved a legislative ban
against the sale of certain sexual devices. After an extensive analysis the court
held that:
We do not read Lawrence, the overruling of Bowers, . . . to have

rendered public morality altogether illegitimate as a rational basis. The
principle that ―[t]he law ... is constantly based on notions of morality,‖
Bowers, 478 U.S. at 196, was not announced for the first time in Bowers and
remains in force today. As we noted in Williams IV, the Supreme Court has
affirmed on repeated occasions that laws can be based on moral judgments.
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Id. The court declined to accept the abandonment of morality in our legislative
system because ―[o]ne would expect the Supreme Court to be manifestly more
specific and articulate than it was in Lawrence if now such a traditional and
significant jurisprudential principal has been jettisoned wholesale . . . .‖ Id.
(internal citations omitted.)2
The Supreme Court of Alabama in 1568 Montgomery Highway, Inc. v. City
of Hoover, 45 So. 3d 319, 345 (Ala. 2010) also held that ―post Lawrence, public
morality can still serve as a legitimate rational basis‖ for regulating laws that are
not a private activity. See also id. at 341(― to the extent that Lawrence rejected
public morality as a legitimate governmental interest, it invalidated only those laws
that involved both private and noncommercial activity.‖)
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Although the Fifth Circuit in Reliable Consultants, Inc. v. Earle, 517 F.3d 738, (5th Cir. 2008)
disagreed with the Eleventh Circuit and held that a ban on certain sexual devices could not be
sustained based on morality interests, that holding does not affect the analysis of the case at
hand. Reliable Consultants dealt with a law prohibiting a privacy right under Due Process
analysis, id. at 746 (―. . . our analysis is on the burden the statute puts on the individual‘s right to
make private decisions about consensual intimate conduct‖), while this case concerns no such
right, but rather, the statutory grant of public recognition of a moral institution. Just as Lawrence
was confined to a state prohibition of a liberty interest, the same is true of Reliable Consultants.
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Not only do morality interests satisfy a rational basis review, they are also a
―substantial governmental interest in protecting order and morality.‖ Barnes, 501
U.S. at 569 (cited by Lofton v. Sec'y of Dept. of Children & Family Servs., 358
F.3d 804, 827 (11th Cir. 2004)) (emphasis added). In Lofton, a post Lawrence
case, the Eleventh Circuit Court of Appeals noted that ―the State‘s interest in
morality is sufficiently substantial to satisfy the government‘s burden under the
more rigorous intermediate level of constitutional scrutiny applicable in some
cases.‖ Id. at 819, n.17. (emphasis added).
Further, specifically regarding the state‘s authority to regulate marriage, it
has been recognized that the government‘s interest in preserving social morality is
so great as to be ―compelling.‖ As a result, statutes that restrict the right of
individuals to marry whom they please have consistently been upheld by the courts
– despite the fact that, as the Court has recognized on numerous occasions (e.g.,
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 314, (1976)),
the right to marry is a fundamental right, and statutes that interfere with that right
are subject to the strictest scrutiny.
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The foundation for state regulation of marriage was established in Maynard
v. Hill, 125 U.S. 190, 205 (1888): ―Marriage, as creating the most important
relation in life, as having more to do with the morals and civilization of a people
than any other institution, has always been subject to the control of the
legislature.‖ (emphasis added). This insight led Justice Powell, concurring in
Zablocki v. Redhail, 434 U.S. 374, 399 (1978), to acknowledge that ―[t]he State,
representing the collective expression of moral aspirations, has an undeniable
interest in ensuring that its rules of domestic relations reflect the widely held
values of its people.‖
In other words, even though marriage is a fundamental right, states may
impinge upon this right to marry by prohibiting marriage between certain
categories of people based on nothing more than morality concerns alone. Judge
Ferren‘s concurring/dissenting opinion in Dean v. District of Columbia, 653 A.2d
307 (D.C.App. 1995), makes the point well. Citing as an example the District of
Columbia‘s law against ―a man‘s marrying his son‘s wife or a woman marrying her
stepfather,‖ Judge Ferren (in a section of his opinion joined by the two other
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members of the D.C. Court of Appeals panel) pinpointed social morality as a self-
sufficient basis for consanguinity laws that prohibit marriages among certain
relatives even though their unions pose no dangers of biological inbreeding. ―The
consanguinity provision . . . reflects taboos – indeed moral judgments about
improper marriage relationships – that transcend genetic concerns.‖ Dean, 653
A.2d at 313.
The government‘s interest in promoting marriage laws that reflect and
promote social morality is so strong that it even trumps a claim to marriage
enhanced by a free exercise claim. Thus, in Potter v. Murray City, 760 F.2d 1065
(10th Cir.), cert. denied 474 U.S. 849 (1985), at issue was the First Amendment
free exercise claim of a practitioner of ―plural marriage‖ who challenged Utah‘s
prohibition against polygamy. The Tenth Circuit duly noted that only a compelling
state interest could overcome the free exercise claim, Potter, 760 F.2d at 1068-69;
and that Utah had presented no empirical evidence that ―monogamy is superior to
polygamy.‖ Id. at 1069. The court nonetheless rejected the First Amendment
claim: ―Monogamy is inextricably woven into the fabric of our society. It is the
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bedrock upon which our culture is built. In light of these fundamental values, the
State is justified, by a compelling interest, in upholding and enforcing its ban on
plural marriage to protect the monogamous marriage relationship.‖ Id. at 1070
(citation omitted; emphasis added).
What is so compelling about the right of government to legislate in these
areas? The answer was well articulated by the English jurist Lord Patrick Devlin.
Commenting generally on the role of morality in a society‘s laws, Devlin
emphasized the enormous interests at stake:
If men and women try to create a society in which there is no

fundamental agreement about good and evil, they will fail if, having based
on common agreement, the agreement goes, the society will disintegrate.
For society is not something that is kept together physically; it is held by the
invisible bonds of common thought. If the bonds were too far relaxed the
members would drift apart. A common morality is part of the bondage. The
bondage is part of the price of society, and mankind, which needs society,
must pay its price.
PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 10, 13 (Oxford U. P. 1965); See
generally, Michael W. McConnell, The Role of Democratic Politics in
Transforming Moral Convictions Into Law, 98 Yale L.J. 1201 (1989); Michael J.
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Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77
Cal. L. Rev. 521 (1989).
It is clear from the foregoing analysis that the district court erred in its
holding that morality is no longer a rational basis for upholding a law. We
respectfully urge this court to overrule the district court‘s holding and restore the
virtue of morality to the law of the First Circuit by, at the very least, affirming that
traditional moral norms are not irrational and do serve a legitimate governmental
interest.
The narrow issue before the Court is whether Congress may enact laws
defining marriage between a man and a woman. But, the broader issue is whether
states may enact any law that reflects and is designed to promote broadly held
views of public morality. That is because it will be difficult, if the Court devalues
the constitutional weight to be accorded the moral underpinnings of the law, to
limit the logic of any such ruling to the specific context of same-sex marriage; it
will inevitably be extended to require the state recognition all other morally-
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renounced relationships. This genie, once let out of the bottle, will not easily be
constrained.
Consider the (for now) universally accepted prohibition of incestuous
marriages. With what appears to be a new international trend regarding attitudes
towards incestuous relationships,3 and without a morality-based reason for
withholding official recognition from incestuous couples, this court will be hard
pressed to sustain its constitutionality. A similar attack can be made against the
states‘ refusal to recognize polygamous marriages.
To hold DOMA‘s moral underpinnings unconstitutional on the grounds that
it oversteps the constitutional limits of legislative power would be to invite legal
challenges against any, if not all, similar laws whose underpinnings are morality-
based. Let those who oppose such laws convince legislative bodies that the moral
3
See e.g., Romania Eyes Legalizing Consensual Incest, Wouldn't Be First Country
in Europe, Fox News, Mar. 21, 2009
http://www.foxnews.com/story/0,2933,510016,00.html, (last visited Jan. 17, 2011)
(―Three European Union nations — France, Spain and Portugal — do not
prosecute consenting adults for incest, and Romania is considering following
suit.‖).
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consensus once thought to underlie the laws no longer exists – much as they have
by now convinced the majority of state legislatures in the country to repeal their
anti-sodomy statutes. But, the courts should not ―solve the problem‖ by judicially
depriving those legislatures of the ability to pass legislation in the area of morality
generally, and sexual morality specifically, altogether.
B. GOVERNMENT’S INTEREST IN PROMOTING PROCREATION

AND THE RAISING OF WELL-ADJUSTED CHILDREN IS A
RATIONAL BASIS FOR DOMA
The district court ―readily dispose[d]‖ of the rational relationship that
traditional marriage - consisting of a male and a female - bears to conceiving and
raising healthy children. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 388
(D. Mass. 2010). The court noted that the government attorneys, whose job it is to
defend their client‘s Congressional statutes, had ―disavowed Congress‘ stated
justification for the statute‖ of ―encouraging responsible procreation and child-
bearing.‖ Id. In abandoning this core basis of marriage, the defendants and the
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court have blindly ignored common sense, voluminous scholarly research, and
ample judicial precedent. This section will explain why preserving the marital
institution as a unity of a man and a woman fulfills the important governmental
interest in helping to ensure that children are raised in the most optimal family
environment.
The commonly raised argument why procreation cannot be a basis for
marriage is because society has always endorsed marriage even in cases where
spouses are incapable of conceiving children. See e.g., Lawrence v. Texas, 539
U.S. 558, 605 (2003) (Scalia, J., dissenting) (―what 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.‖).
The above argument confuses the reason for the institution of marriage with
the reason for an individual marriage; they are two distinct issues. While an
individual may choose to get married – i.e. utilize the institution of marriage- for
any number of reasons, the reason for the existence of the institution of marriage
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has only one primary reason– raising normal, well-adjusted children. For example,
a person may choose to marry purely for tax reasons, but that does not mean that
marriage was created as a means of saving taxes. Similarly, the fact that
individuals may marry without being able to achieve the primary objective of
marriage does not change the purpose of marriage itself. See also, Andersen v.
King County, 158 Wash. 2d 1, 37, 138 P.3d 963, 983 (2006) (―The fact[] that all
opposite-sex couples do not have children . . . do[es] not mean that limiting
marriage to opposite-sex couples lacks a rational basis. Such over- or under-
inclusiveness does not defeat finding a rational basis.‖).
The institution of marriage is greater than the sum of individual married
couples. Marriage, besides for providing practical benefits to individual couples
under its union, also provides an important societal and educational function. It
signals society‘s judgment of a ―social institution that . . . best normalizes,
stabilizes, and links the acts of procreation and child rearing.‖ Goodridge v. Dep't
of Pub. Health, 440 Mass. 309, 391, 798 N.E.2d 941, 1001-02 (2003) (Cordy, J.
dissenting). That the objective reason for marriage is procreation does not
21
22
necessarily mean that the result of every marriage must meet that objective. The
objective of marriage – raising normal, well-adjusted children - can still be
achieved even if the result of an individual marriage does not achieve the stated
objective.
The broader societal function of marriage is not affected by allowing
individuals incapable of procreating to marry. But, the institution of marriage will
be gravely affected by changing its definition to include a union that abandons the
core element of marriage - the aspiration to create offspring and a raise a family.
So long as marriage is limited to opposite-sex couples who can at least

theoretically procreate, society is able to communicate a consistent message
to its citizens that marriage is a (normatively) necessary part of their
procreative endeavor; that if they are to procreate, then society has endorsed
the institution of marriage as the environment for it and for the subsequent
rearing of their children; and that benefits are available explicitly to create a
supportive and conducive atmosphere for those purposes. If society proceeds
similarly to recognize marriages between same-sex couples who cannot
procreate, it could be perceived as an abandonment of this claim, and might
result in the mistaken view that civil marriage has little to do with
procreation: just as the potential of procreation would not be necessary for a
marriage to be valid, marriage would not be necessary for optimal
procreation and child rearing to occur. In essence, the Legislature could
conclude that the consequence of such a policy shift would be a diminution
22
23
in society's ability to steer the acts of procreation and child rearing into their
most optimal setting.
Id.
There are many reasons why society, represented by the legislature, could
rationally conclude that traditional marriage is the optimum setting in which to
―manage procreation and the resultant child rearing.‖ Id. 440 Mass. at 392, 798
N.E.2d at 1003, n. 34. First, as a biblical and historic reason: the first time the
Bible introduces the concept of marriage, it also describes its purpose -
procreation. Genesis, 2:24 states: ―. . . a man shall leave his father and his mother
and cling to his wife and they shall become one flesh.‖ The Talmud – the
preeminent authoritative Jewish commentary on the Bible, written more than two
thousand years ago – explains the phrase ―to become one flesh‖ to refer to a
creating a child - something that encompasses the man and the woman in ―one
flesh.‖ Tractate Sanhedrin, 58a. Thus, the annotated verse states that a man shall
marry his wife to create a child. Notwithstanding the religious view of marriage,
23
24
from a solely historic perspective of the Bible, it is evident that the primary
purpose of marriage is to create offspring.
The Supreme Court has continuously confirmed that marriage is inextricably
linked to childbearing. ―Nearly all United States Supreme Court decisions
declaring marriage to be a fundamental right expressly link marriage to
fundamental rights of procreation, childbirth, abortion, and child-rearing.‖
Andersen, 158 Wash. 2d 1, 138 P.3d 963, 978 (2006) (citing Skinner v. Oklahoma,
316 U.S. 535, 541 (1942) (―[m]arriage and procreation are fundamental to the very
existence and survival of the race.‖); Loving v. Virginia, 388 U.S. 1, 12 (1967)
(―[m]arriage is one of the ‗basic civil rights of man,‘ fundamental to our very
existence and survival‖); Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (―the
decision to marry has been placed on the same level of importance as decisions
relating to procreation, childbirth, child rearing, and family relationships. . .‖);
Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage is ―the foundation of the
family and of society, without which there would be neither civilization nor
progress‖)).
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A child, once created by a man and a woman, requires the continued input of
both its mother and father. As a matter of pure logic, it would follow that just as
both male and female input are needed to create a child, male and female input are
also required to raise a child in the most optimal fashion. ―Intuition and experience
suggest that a child benefits from having before his or her eyes, every day, living
models of what both a man and a woman are like.‖ Hernandez v. Robles, 7 N.Y.3d
338, 359, 855 N.E.2d 1, 7 (2006); see also, Goodridge, 440 Mass. at 381, 798
N.E.2d at 995 ( ―the institution of marriage has . . . brought order to the resulting
procreation, and ensured a stable family structure in which children will be reared,
educated, and socialized.‖). Allowing same-sex marriage will undermine the norm
of dual-gender parenting and will deprive children of the crucial necessity of male
and female input.
Empirical scholarly research has also shown that opposite-sex couples are
best suited to raise children, and ―statistics continue to show that the most stable
family for children to grow up in is that consisting of a father and a mother.‖
Lynne Marie Kohm, The Homosexual “Union”: Should Gay and Lesbian
25
26
Partnerships be Granted the Same Status as Marriage?, 22 J. Contemp. L. 51, 61
& nn. 53, 54 (1996) (cited by Goodridge, 440 Mass. at 395, 798 N.E.2d at 1005
(2003)). Same-sex couples, on the other hand, necessarily will be lacking either a
father or mother, and will, therefore, deprive the child of a crucial parental figure.4
Andersen, 158 Wash. 2d at 82, 138 P.3d at 1006. The Supreme Court of
Washington found that that ―[s]tudies summarized in the record before one trial
court demonstrated that an absent father ‗is associated with quantifiable deficits in
children at every stage of the lifecycle, persisting not only in the adulthood of the
child, but even into the next generation.‘‖).5 Id. Based on these and other similar
4
Although there are many children that are raised by single parents, that does not mean that that
state has ―endorsed single parenthood as an optimal setting in which to raise children or views it
as the equivalent of being raised by both of one's biological parents.‖ Goodridge, 440 Mass. at
390, 798 N.E.2d at 1001. ―That the State does not preclude different types of families from
raising children does not mean that it must view them all as equally optimal and equally
deserving of State endorsement and support.‖ Id. 440 Mass. at 389, 798 N.E.2d at 1001.
5
―The assessment summarized: With respect to fatherlessness, quantifiable deficits occur in
literally every area of development-social, psychological, intellectual, educational, emotional,
relational, medical, even with respect to longevity, as well as with respect to sexuality, likelihood
of cigarette use, drug and alcohol abuse, age of onset of sexual activity and likelihood of teen or
earlier pregnancy.‖ Andersen, 158 Wash. 2d at 87, 138 P.3d at 1008, n. 43. (internal citations
omitted); see also Goodridge, 440 Mass. at 386 n. 23, 798 N.E.2d 941 (Cordy, J., dissenting) (
citing [H. Elaine] Rodney [ & Robert Mupier], Behavioral Differences between African
26
27
studies, it cannot be irrational to conclude that promoting mixed-gender marriages
best averts these problems.
Although some contradictory studies have shown opposite results hailing the
virtues of same-sex couples‘ parenting, this does not affect a rational basis
analysis. As long as there were some reasonable factual studies on which to base
DOMA, the district court should have upheld its constitutionality, even if the court
disagreed with the studies. See Heller v. Doe, 509 U.S. 312, 333 (1993) (―It could
be that the assumptions underlying these rationales are erroneous, but the very fact
that they are arguable is sufficient, on rational-basis review, to immunize the
American Male Adolescents with Biological Fathers and Those Without Biological Fathers in
the Home, 30 J. Black Stud. 45, 53 (1999) (African-American juveniles who lived with their
biological fathers displayed fewer behavioral problems than those whose biological fathers were
absent from home); [Roland J.] Chilton [ & Gerald E. Markle], Family Disruption, Delinquent
Conduct and the Effect of Subclassification, 37 Am. Soc. Rev. 93, 95 (1972) (proportion of youth
charged with juvenile offenses who were not living in husband-wife family was larger than
comparable proportion of youth charged with juvenile offenses who were living in husband-wife
family); [John P.] Hoffmann [ & Robert A. Johnson], A National Portrait of Family Structure
and Adolescent Drug Use, 60 J. Marriage & Fam. 633 (1998) (children from households with
both mother and father reported relatively low use of drugs, whereas children from households
without their natural mothers and from other family type households had highest prevalence of
drug use); D. BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL
PROBLEM 25 (1995)).
27
28
legislative choice from constitutional challenge.‖) ―In areas of social and
economic policy, a statutory classification that neither proceeds along suspect lines
nor infringes fundamental constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.‖ F.C.C. v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993) (emphasis added).
The district court, by rejecting the aforementioned reasons for marriage, held
that there is not even a ―reasonably conceivable‖ argument that children would fare
better with a mother and a father than with two mothers or two fathers. Such a
bold assertion not only ignores legitimate arguments contrary to the court‘s
preferred ideology, but also grossly exceeds the bounds of judicial review. A
decision on how best to raise children and structure society—based on voluminous
empirical studies, historical success rates, and public opinion—is solely within the
power of the democratically elected legislature. The districts court‘s foray into an
exclusively legislative decision flagrantly violated federal separation of powers
principles.
28
29
We urge this Court to restore the clearly established bounds of judicial
review and give deference to Congress‘ stated decision to ―encourag[e] responsible
procreation and child-bearing.‖ Such an objective is rationally achieved by
assuring that every federally recognized marriage consists of a male and a female
to provide an optimum setting to raise offspring.
29
30
III
CONCLUSION
For the above mentioned reasons, amicus curiae Agudath Israel of America
respectfully urges that this case not be used to withdraw morality-based matters
from community concern. The decision below should be overruled.
RESPECTFULLY SUBMITTED this 27th day of
January, 2011.
/s/Russell D. Raskin /s/ Abba Cohen

Russell D. Raskin* Abba Cohen
RASKIN & BERMAN AGUDATH ISRAEL OF AMERICA
116 East Manning Street 1730 Rhode Island Avenue
Providence, RI 02906 Washington, D.C. 20036
(401) 421 1363 x 19 202-835-0414
--and--
30
31
/s/ Mordechai Biser

Mordechai Biser
AGUDATH ISRAEL OF AMERICA
42 Broadway
New York, NY 10004
(212) 797-9000
* Counsel of Record
Attorneys for Amicus Curiae
31
32
CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to Fed. R. App. P. 32(a)(7)(C), the attached
Brief of Amici Curiae has been produced using the proportional font 14-point
Times New Roman. I also certify that this brief contains 5, 489 words, as
calculated by Microsoft Word 2007, in compliance with the type-volume
limitations of Fed. R. App. P. 32(a)(7)(B).
/s/ Mordechai Biser

Mordechai Biser
Counsel for Amicus Curiae
January 27, 2011
32
33
CERTIFICATE OF SERVICE
I hereby certify that on January 27, 2011, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the First Circuit
by using the appellate CM/ECF system. I further certify that all participants in the
case are registered CM/ECF users and will be served by the appellate CM/ECF
system.
/s/ Russell D. Raskin
33

Agudath Israel of America Amicus Brief - Mass DOMA Cases

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Case: 10-2204 Document: 00116163993 Page: 1 Date Filed: 01/28/2011 Entry ID: 5522206

Nos. 10-2204, 10-2207, and 10-2214

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned

January 27, 2011

TABLE OF AUTHORITIES .....................................................................................v

STATEMENT OF INTEREST OF AMICUS CURIAE ..........................................1

II. ARGUMENT ........................................................................................................5

A. LAWS THAT REFLECT AND PROMOTE STANDARDS OF

B. GOVERNMENT‘S INTEREST IN PROMOTING PROCREATION AND

III. CONCLUSION ..................................................................................................30

CERTIFICATE OF COMPLIANCE .......................................................................32

CERTIFICATE OF SERVICE ………………………………………...…………33

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ……………………………….6

Bowers v. Hardwick, 478 U.S. 186 (1986) ………………………………………..7

Carey v. Population Services, Int'l, 431 U.S. 678 (1977) …………..……………10

Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ……....….….………………...……..11

Dean v. District of Columbia, 653 A.2d 307 (D.C.App. 1995) ………................14

F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ………..….………...…...28

Heller v. Doe, 509 U.S. 312 (1993) …..….………..….………………………….10

Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (2006) ……..….……………...8

Hoke v. United States, 227 U.S. 308 (1913) …………………………….…....……6

Lawrence v. Texas, 539 U.S. 558 (2003) ………..………………………………...5

Loving v. Virginia, 388 U.S. 1 (1967) ……...….....…………....…….…….….…23

Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) …….…..13

Maynard v. Hill, 125 U.S. 190 (1888) …….….….……………………………….14

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ….….….…..……………..…6

Potter v. Murray City, 760 F.2d 1065 (10th Cir.) …………………………..……15

Roe v. Wade, 410 U.S. 113 (1973) ……………………...…………………….....10

Romer v. Evans, 517 U.S. 620 (1996) ……………………………………………10

Roth v. United States, 354 U.S. 476 (1957) …………………………………....… 6

Skinner v. Oklahoma, 316 U.S. 535 (1942) ….…………………………..……….23

United States v. Stagliano, 693 F. Supp. 2d 25 (D.D.C. 2010) …………….…….10

Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007) …..………..…..………..11

Zablocki v. Redhail, 434 U.S. 374 (1978) …………..…………………...………14

Babylonian Talmud, Tractate Sanhedrin, 58a …………...…………………….....23

D. BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT

Genesis, 2:24 …………………………………………………...………..………23

H. Elaine Rodney & Robert Mupier, Behavioral Differences between African

John P. Hoffmann & Robert A. Johnson, A National Portrait of Family Structure

Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and

Michael W. McConnell, The Role of Democratic Politics in Transforming Moral

PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 10, 13 (Oxford U. P. 1965) …16

Romania Eyes Legalizing Consensual Incest, Wouldn't Be First Country in Europe,

INTEREST OF THE AMICUS CURIAE

Amicus curiae Agudath Israel of America, founded in 1922, is a national

States, including Massachusetts.

Our involvement in protecting the valuable institution of traditional marriage

proposed DOMA bill. At the hearings, we testified that ―[l]legalizing same-sex

entirely distinct from marriage.‖ Defense of Marriage Act of 1996: Hearing on S.

below ignores this telling consideration.

Further, we are deeply concerned about the potential far-reaching

consequences of a decision that refuses to assign any weight to traditional notions

of morality in determining the constitutional validity of legislation.

As discussed more fully in our arguments that follow, the possible

based laws. We view such prospect with considerable alarm.

Accordingly, while this case raises a number of other important issues as

Defense of Marriage Act (―DOMA‖): equal protection Gill v. Office of Pers.

possible rational basis to distinguish between a marriage encompassing the rich

diversity of both genders and a marriage consisting of a duplicate of the same

gender. In other words, the traditional notion of marriage, biblically referenced

and accepted almost universally by modern society throughout history, is,

court to eschew such a radical interpretation of our common history.

Section A of this brief provides clear and continuous judicial precedent to