You are on page 1of 143

Tab

#
Description Pdf
Page
PART ONE
LEGAL MATERIALS
1 Utah Code 30-1-2 2
2 Utah Code 30-1-4.1 4
3 Utah Constitution Art. 1, 29 (Amendment 3) 6
4 H.J.R. 25, Joint Resolution on Marriage (as originally filed) 8
5 H.J.R. 25, Joint Resolution on Marriage (Senate Floor Amendments) 11
6 H.J.R. 25, Joint Resolution on Marriage (final, reflecting Senate amendments) 13
7 Chart: The definition of marriage: State statutory and constitutional provisions 16
8 Chart: The definition of marriage: State ballot measures 21
9 Chart: The language of State constitutional bans on domestic partnership and
other non-marital unions
27
10 Chart: Court decisions on the marriage issue 33
11 Chart: Pending cases on the marriage issue 36
12 Chart: Pending cases on the marriage issue 39
13 Amicus curiae brief of Social Science Professors, Hollingsworth v. Perry, No. 12-
144, and United States v. Windsor, No. 12-307 (U.S. Sup. Ct. January 2013)
53
14 Amicus curiae brief of Scholars of History and Related Disciplines, Hollingsworth
v. Perry, No. 12-144 (U.S. Sup. Ct. January 2013)
95
15 [Reserved] 142
16 [Reserved] 143





TAB 1




30-1-2. Marriages prohibited and void, UT ST 30-1-2
West's Utah Code Annotated
Title 30. Husband and Wife
Chapter 1. Marriage
U.C.A. 1953 30-1-2
30-1-2. Marriages prohibited and void
Currentness
The following marriages are prohibited and declared void:
(1) when there is a husband or wife living, from whom the person marrying has not been divorced;
(2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;
(3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of
age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age,
under conditions set in accordance with Section 30-1-9;
(4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree
becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and
(5) between persons of the same sex.
Credits
Laws 1907, c. 29, 1; Laws 1909, c. 109, 4; Laws 1939, c. 50, 1; Laws 1941, c. 35, 1; Laws 1963, c. 42, 1; Laws 1963,
c. 43, 1; Laws 1975, c. 67, 1; Laws 1977, c. 122, 1; Laws 1977, 1st Sp.Sess., c. 1, I; Laws 1987, c. 246, 1; Laws 1991,
c. 117, 1; Laws 1993, 2nd Sp.Sess., c. 14, 1; Laws 1999, c. 15, 1, eff. May 3, 1999.
Codifications R.S. 1898, 1184; C.L. 1907, 1184; C.L. 1917, 2967; R.S. 1933, 40-1-2; C. 1943, 40-1-2.
Notes of Decisions (24)
U.C.A. 1953 30-1-2, UT ST 30-1-2
Current through 2013 First Special Session.
of Document 20D 'I l'.o cbnn w (lligin:tl l.i.S. Works.
WestlawNexr 2013 Thomson Reuters. No claim to or1ginal U.S. Government Works.
000001






TAB 2



301-4.1. Marriage recognition policy, UT ST 30-1-4.1


West's Utah Code Annotated
Title 30. Husband and Wife
Chapter 1. Marriage
U.C.A. 1953 30-1-4.1
30-1-4.1. Marriage recognition policy
Currentness
(!)(a) It is the policy ofthis state to recognize as marriage only the legal union of a man and a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will
not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially
equivalent to those provided under Utah law to a man and a woman because they are married.
(2) Nothing in Subsection (I) impairs any contract or other rights, benefits, or duties that are enforceable independently of
this section.
Credits
Laws 2004, c. 261, I, eff. March 23,2004.
U.C.A. 1953 30-1-4.1, UT ST 30-1-4.1
Current through 2013 First Special Session.
End or Document <' 20 I.\ 'llwm>on R ~ u t ~ r ' . l\o dann tP t'nginal U.S Gownnncnl Works.
ltVt:stlawNexr 2013 Thomson F<euters. No clnim to original U.S. Govornment Works.
000002





TAB 3




Sec. 29. [Marriage], UT CONST Art. 1, 29
West's Utah Code Annotated
Constitution of Utah
Article I. Declaration of Rights
U.C.A. 1953, Const. Art. 1, 29
Sec. 29. [Marriage]
Currentness
(I) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially
equivalent legal effect.
Credits
Laws 2004, H.J.R. 25, 1, adopted at election Nov. 2, 2004, eff. Jan. I, 2005.
U.C.A. 1953, Const. Art. 1, 29, UT CONST Art. I, 29
Current through 2013 First Special Session.
End of Ilocumcnl <\.: 2013 rhumsPn Reuters. i\o claim til original U.S. Govcrnm<.'nt W i l r k ~ .
VVstlavvNexr 0.J 2013 Thomson Reuters. No claim to original U.S. Government Works.
000003





TAB 4




Download Zipped Introduced WordPerfect HJR025.ZIP
[Status][Bill Documents][Fiscal NoteUBills Directory]
H.J.R. 25
1
JOINT RESOLUTION ON MARRIAGE
2
2004 GENERAL SESSION
3
STATE OF UTAH
4
Sponsor: LaVar Christensen
5
6 LONG TITLE
7 General Description:
8 This joint resolution of the Legislature proposes to amend the Utah Constitution to add
9 a provision relating to marriage.
10 Highlighted Provisions:
11 This resolution proposes to amend the Utah Constitution to:
12 . define marriage as only the union of a man and a woman; and
13 . provide that no other domestic status or union is valid or recognized or may be
14 authorized, sanctioned, or given equivalent legal effect.
15 Special Clauses:
16 This resolution directs the lieutenant governor to submit this proposal to voters.
17 This resolution provides an effective date.
18 Utah Constitution Sections Affected:
19 ENACTS:
20 ARTICLE I, SECTION 29
21
22 Be it resolved by the Legislature of the state of Utah, tVKJ-thirds of all members elected to each
23 of the tVKJ houses voting in favor thereof:
24 Section 1. It is proposed to enact Utah Constitution Article I, Section 29, to read:
25 Article I, Section 29. [Marriage.]
26 (1 J Marriage consists onlv of the legal union between a man and a VKJman.
27 (2J No other domestic status or unjon. however denominated. between persons is valid
28 or recognized or mav be authorized. sanctioned. or given the same or substantiallY equivalent
000004
30 Section 2. Submittal to voters.
31 The lieutenant governor is directed to submit this proposed amendment to the voters of
32 the state at the next regular general election in the manner provided bv law.
33 Section 3. Effective date.
34 If the amendment proposed bv this joint resolution is approved bv a majoritv of those
35 voting on it at the next regular general election. the amendment shall take effect on January 1.
36 2005.
Legislative Review Note
as of 2-4-04 10:12 AM
In Zablocki v. Redhail, 434 U.S. 374 (1978), the United States Supreme Court
concluded that the right to marry "is of fundamental importance," requiring "critical
examination" of the state's interest in creating a classification that interferes with that right.
The Court has not specifically decided whether a state's interest is sufficiently compelling to
justify restricting the right to marry to a man and a woman. Other cases could be argued by
analogy to suggest that restricting the right to marry to a man and a woman violates federal due
process or equal protection provisions.
If the amendment to the Utah Constitution proposed by this joint resolution is approved
by voters and becomes part of the Utah Constitution, it may be susceptible to challenge under
federal due process or equal protection grounds. Relevant case law is inconclusive, and how a
court would ultimately decide the constitutionality of the provision under the United States
Constitution in the context of a specific lawsuit is difficult to predict.
Office of Legislative Research and General Counsel
[Bill Documents][Bills Directory]
000005





TAB 5




Page 1 of 1
hjr025.sfap.02.wpd Rrees Rrees
H.J.R. 25
JOINT RESOLUTION ON MARRIAGE
SENATE FLOOR AMENDMENTS AMENDMENT 2 MARCH 3, 2004 9:27 AM
Senator John L. Valentine proposes the following amendments:
1. Page 1, Lines 11 through 14:
11 This resolution proposes to amend the Utah Constitution to:
* * * Some lines not shown * * *
13 < provide that no other domestic status or union is valid or recognized or may be [[ ]] [[ ]]
14 authorized, sanctioned, or given equivalent legal effect. [[ ]]
2. Page 1, Line 27 through Page 2, Line 29:
27 (2) No other domestic status or union, however denominated, between persons is valid [[ ]] [[
28 or may be recognized as a marriage or may be authorized, sanctioned, or given the ]] [[ ]]
same or substantially equivalent
29 legal effect as a marriage . [[ ]]
000006





TAB 6




Download Zipped Amended WordPerfect HJR025.ZIP
[lntroducedUStatus][Bill DocumentsUFiscal NoteUBills Directory]
H.J.R. 25
This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Wed, Mar 3,
2004 at 8:42PM by rday. --> 1
2
3
4
5
6
7
8
9
10
11
12
13
may
13a
14
15
16
17
18
19
20
21
22
23
24
25
26
27
27a
JOINT RESOLUTION ON MARRIAGE
2004 GENERAL SESSION
STATE OF UTAH
Sponsor: LaVar Christensen
LONG TITLE
General Description:
This joint resolution of the Legislature proposes to amend the Utah Constitution to add
a provision relating to marriage.
Highlighted Provisions:
This resolution proposes to amend the Utah Constitution to:
define marriage as only the union of a man and a woman; and
provide that no other domesticS [ statt1s er] s unionS [is "+'&lid er reeegnized er] s
be
S [ atltherized, sanetlened, er] s given equivalent legal effect.
Special Clauses:
This resolution directs the lieutenant governor to submit this proposal to voters.
This resolution provides an effective date.
Utah Constitution Sections Affected:
ENACTS:
ARTICLE I, SECTION 29
Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
of the two houses voting in favor thereof:
Section 1. It is proposed to enact Utah Constitution Article I, Section 29, to read:
Article I, Section 29. [Marriage.]
(1 J Marriage consists only of the legal union betvveen a man and a ooman.
(2J No other domestic S [ sfaftts er] s union. hovvever denominated, S [ between pef'sens is
wtlid-] s
000007
28
gMm
28a
29
30
31
32
33
34
35
36
S [ er) MAY BE s recognized S AS A MARRIAGEs or S [ may be sanetiened, er] s
the same or substantially equivalent
legal effect S [ ss s maf'Tiage ] s ""
Section 2. Submittal to voters.
The lieutenant governor is directed to submit this proposed amendment to the voters of
the state at the next regular general election in the manner provided by law.
Section 3. Effective date.
If the amendment proposed by this joint resolution is approved by a majority of those
voting on it at the next regular general election. the amendment shall take effect on January 1.
2005.
Legislative Review Note
as of 2-4-04 10:12 AM
In Zablocki v. Redhail, 434 U.S. 374 (1978), the United States Supreme Court
concluded that the right to marry "is of fundamental importance," requiring "critical
examination" of the state's interest in creating a classification that interferes with that right.
The Court has not specifically decided whether a state's interest is sufficiently compelling to
justify restricting the right to marry to a man and a vvoman. Other cases could be argued by
analogy to suggest that restricting the right to marry to a man and a vvoman violates federal due
process or equal protection provisions.
If the amendment to the Utah Constitution proposed by this joint resolution is approved
by voters and becomes part of the Utah Constitution, it may be susceptible to challenge under
federal due process or equal protection grounds. Relevant case law is inconclusive, and how a
court vvould ultimately decide the constitutionality of the provision under the United States
Constitution in the context of a specific lawsuit is difficult to predict.
Office of Legislative Research and General Counsel
[Bill Documents][Bills Directory]
000008





TAB 7




THE DEFINITION OF MARRIAGE:
STATE STATUTORY AND CONSTITUTIONAL PROVISIONS

Alabama: ALA. CONST. amend. 774 (man-woman)

Alaska: ALASKA CONST. art. I, 25 (man-woman)

Arizona: ARIZ. CONST. art. XXX (man-woman)

Arkansas: ARK. CONST. amend. LXXXII, 1 (man-
woman)

California: CAL. CONST. art. I, 7.5 (man-woman), overruled by Perry
v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (appeals
vacated or not addressing merits)

Colorado: COLO. CONST., art. II, 31 (man-woman)

Connecticut: CONN. GEN. STAT. 46b-20 (genderless)
Delaware: DEL. CODE tit. 13, 101; 101(e) (genderless)

District of Columbia: D.C. CODE 46-401 (genderless)

Florida: FLA. CONST. art. I, 27 (man-woman)

Georgia: GA. CONST., Art I, 4 1 (man-woman)

Hawaii: HAW. CONST. art. I, 23; HAW. REV. STAT. 572-1 (man-
woman)

Idaho: IDAHO CONST. art. III, 28 (man-woman)

Illinois: 750 ILL. COMP. STAT. 5/213.1 (man-woman)

000009
Indiana: IND. CODE ANN. 31-11-1-1 (man-woman)

Iowa: Struck down by Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
(genderless)

Kansas: KAN. CONST. art. XV, 16 (man-woman)

Kentucky: KY. CONST. 233A (man-woman)

Louisiana: LA. CONST. art. XII, 15 (man-woman)

Maine: ME. REV. STAT. tit. 19-A, 650, 701 (genderless)

Maryland: MD. CODE, FAM. LAW 2-201 (genderless)

Massachusetts: Decided by Goodridge v. Dept of Pub. Health, 798
N.E.2d 941 (Mass. 2003) (genderless)

Michigan: MICH. CONST. art. I, 25 (man-woman)

Minnesota: MINN. STAT. 517.03; 2013 Minn. Laws 74 (genderless)

Mississippi: MISS. CONST. art. XIV, 263A (man-woman)

Missouri: MO. CONST. art. I, 33 (man-woman)

Montana: MONT. CONST. art. XIII, 7 (man-woman)

Nebraska: NEB. CONST. art. I, 29 (man-woman)

Nevada: NEV. CONST. art. I, 21 (man-woman)

New Hampshire: N.H. REV. STAT. 457:1-a (genderless)

000010
New Jersey: N.J. STAT. 37:1-1 et. seq. (implicitly defining as man-
woman)

New Mexico: No definition in statute (man-woman is accepted de
facto definition in most counties)

New York: N.Y. DOM. REL. LAW 10-a (genderless)

North Carolina: N.C. CONST. art. XIV, 6 (man-woman)

North Dakota: N.D. CONST. art XI, 28 (man-woman)

Ohio: OHIO CONST. art. XV, 11 (man-woman)

Oklahoma: OKLA. CONST. art. II, 35 (man-woman)

Oregon: OR. CONST. art. XV, 5a (man-woman)

Pennsylvania: 23 PA. CONS. STAT. 1704 (man-woman)

Rhode Island: R.I. GEN. LAWS 15-1-1 et. seq. (genderless)

South Carolina: S.C. CONST. art. XVII, 15 (man-woman)

South Dakota: S.D. CONST. art. XXI, 9 (man-woman)

Tennessee: TENN. CONST. art. XI, 18 (man-woman)

Texas: TEX. CONST. art. I, 32 (man-woman)

Utah: UTAH CONST. art. I, 29 (man-woman)

Vermont: VT. STAT. tit. 15, 8 (genderless)

Virginia: VA. CONST. art. I, 15-A (man-woman)
000011

Washington: WASH. REV. CODE 26.04.020 et. seq. (genderless)

West Virginia: W. VA. CODE 48-2-104(c) (man-woman)

Wisconsin: WIS. CONST. art. XIII, 13 (man-woman)

Wyoming: WYO. STAT. 20-1-101 (man-woman)





000012





TAB 8




THE DEFINITION OF MARRIAGE:
BALLOT MEASURES

Alabama: 2006; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 81%/19%

Alaska: 1998; to amend constitution to enshrine
man-woman marriage; legislature initiated; passed
68%/31%

Arizona: 2006; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
voter initiated; failed 48%/52%

Arizona: 2008; to amend constitution to enshrine
man-woman marriage; legislature initiated; passed
56%/44%

Arkansas: 2004; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
voter initiated; passed 75%/25%

California: 2000; to enact super-legislation to
enshrine man-woman marriage; voter initiated;
passed 61%/39%

California: 2008; to amend constitution to restore
man-woman marriage; voter initiated; passed
52%/48%

Colorado: 2006; to amend constitution to enshrine
man-woman marriage; voter initiated; passed
55%/45%

000013
Florida: 2008; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 62%/38%

Georgia: 2004; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 76%/24%

Hawaii: 1998; to amend constitution to give
legislature sole power to define marriage; legislature
initiated; passed 69%/31%

Idaho: 2006; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 63%/37%

Kansas: 2005; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 70%/30%

Kentucky: 2004; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 75%/25%

Louisiana: 2004; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 78%/22%

Maine: 2009; to preserve man-woman marriage;
voter initiated following legislature vote to approve
genderless marriage; passed 53%/47%

Maine: 2012; to approve genderless marriage via
referendum; voter initiated; passed 53%/47%

000014
Maryland: 2012; to approve genderless marriage
legislation; voter initiated following legislature vote
to approve genderless marriage; passed 52%/48%

Michigan: 2004; to amend constitution to enshrine
man-woman marriage and prohibit civil unions; voter
initiated; passed 59%/41%

Minnesota: 2012; to amend constitution to enshrine
man-woman marriage; legislature initiated; failed
47%/53%

Mississippi: 2004; to amend constitution to
enshrine man-woman marriage; legislature initiated;
passed 86%/14%

Missouri: 2004; to amend constitution to enshrine
man-woman marriage; legislature initiated; passed
71%/29%

Montana: 2004; to amend constitution to enshrine
man-woman marriage; voter initiated; passed
67%/33%

Nebraska: 2000; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
voter initiated; passed 70%/30%

Nevada: 2000; to amend constitution to enshrine
man-woman marriage; voter initiated; passed
70%/30%

Nevada: 2002; to amend constitution to enshrine
man-woman marriage; voter initiated; passed
67%/33%
000015

North Carolina: 2012; to amend constitution to
enshrine man-woman marriage; legislature initiated;
passed 61%/39%

North Dakota: 2004; to amend constitution to
enshrine man-woman marriage and prohibit civil
unions; voter initiated; passed 73%/27%


Ohio: 2004; to amend constitution to enshrine man-
woman marriage and prohibit civil unions; voter
initiated; passed 62%/38%

Oklahoma: 2004; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 76%/24%

Oregon: 2004; to amend constitution to enshrine
man-woman marriage; voter initiated; passed
57%/43%

South Carolina: 2006; to amend constitution to
enshrine man-woman marriage and prohibit civil
unions; legislature initiated; passed 78%/22%

South Dakota: 2006; to amend constitution to
enshrine man-woman marriage and prohibit civil
unions; legislature initiated; passed 52%/48%

Tennessee: 2006; to amend constitution to enshrine
man-woman marriage; legislature initiated; passed
81%/19%

000016
Texas: 2005; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 76%/24%

Utah: 2004; to amend constitution to enshrine man-
woman marriage and prohibit civil unions;
legislature initiated; passed 66%/34%

Virginia: 2006; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 57%/43%

Washington: 2012; to approve genderless marriage
legislation; voter initiated following legislative vote
to approve genderless marriage; passed 54%/46%

Wisconsin: 2006; to amend constitution to enshrine
man-woman marriage and prohibit civil unions;
legislature initiated; passed 59%/41%


Note: In Hawaii and Minnesota, a blank vote
counts, in essence, as a no vote. For purposes of
this chart, in those States, blank votes were counted
as if they were no votes.

000017





TAB 9




LANGUAGE OF CONSTITUTIONAL BANS ON
DOMESTIC PARTNERSHIPS AND OTHER
NON-MARITAL UNIONS

Alabama: 2006; A union replicating marriage of or
between persons of the same sex in the state of
Alabama or in any other jurisdiction shall be
considered and treated in all respects as having no
legal force of effect in this state and shall not be
recognized by this state as a marriage or other union
replicating marriage Ala. Const. amdt. 774.

Arkansas: 2004; Legal status for unmarried
persons which is identical or substantially similar to
marital status shall not be valid or recognized in
Arkansas Ark Const. amend. LXXXII, 1.

Florida: 2008; Inasmuch as marriage is the legal
union of only one man and one woman as husband
and wife, no other legal union that is treated as
marriage or the substantial equivalent thereof shall
be valid or recognized. Fla. Const. art. I, 27.

Georgia: 2004; This state shall not give effect to
any public act, record, or judicial proceeding of any
other state or jurisdiction respecting a relationship
between persons of the same sex that is treated as a
marriage under the laws of such other state or
jurisdiction. Ga. Const. art. I, 4 1.

Idaho: 2006; A marriage between a man and a
woman is the only domestic legal union that shall be
valid or recognized in this state. Idaho Const., Art.
III, sec. 28.
000018
Kansas: 2005; No relationship, other than a
marriage, shall be recognized by the state as
entitling the parties to the rights or incidents of
marriage. Kan. Const. art. XV, 16.

Kentucky: 2004; A legal status identical or
substantially similar to that of marriage for
unmarried individuals shall not be valid or
recognized. Kentucky Const., 233A.

Louisiana: 2004; A legal status identical or
substantially similar to that of marriage for
unmarried individuals shall not be valid or
recognized. La. Const. art. XII, 15.

Michigan: 2004; To secure and preserve the
benefits of marriage for our society and for future
generations of children, the union of one man and
one woman in marriage shall be the only agreement
recognized as a marriage or similar union for any
purpose. Mich. Const. art. I, 25.


Nebraska: 2000; The uniting of two persons of the
same sex in a civil union, domestic partnership, or
other similar same-sex relationship shall not be
valid or recognized in Nebraska. Neb. Const. art. I,
29.

North Carolina: 2012: Marriage between one man
and one woman is the only domestic legal union that
shall be valid or recognized in this State. This
section does not prohibit a private party from
entering into contracts with another private party;
nor does this section prohibit courts from
000019
adjudicating the rights of private parties pursuant to
such contracts. N.C. Const. art. XIV 6.

North Dakota: 2004; No other domestic union,
however denominated, may be recognized as a
marriage or given the same or substantially
equivalent legal effect. N.D. Const. art. XI, 28.


Ohio: 2004; This state and its political subdivisions
shall not create or recognize a legal status for
relationships of unmarried individuals that intends
to approximate the design, qualities, significance or
effect of marriage. Ohio Const. art. XV, 11

Oklahoma: 2004; Neither this Constitution nor
any other provision of law shall be construed to
require that marital status or the legal incidents
thereof be conferred upon unmarried couples or
groups. Okla. Const. art. II, 35.

South Carolina: 2006; A marriage between one
man and one woman is the only lawful domestic
union that shall be valid or recognized in this State.
This State and its political subdivisions shall not
create a legal status, right or claim respecting any
other domestic union, however denominated. This
State and its political subdivisions shall not
recognize or give effect to a legal status, right or
claim created by another jurisdiction respecting any
other domestic union, however denominated.
Nothing in this section shall impair any right or
benefit extended by the State or its political
subdivisions other than a right or benefit arising
from a domestic union that is not valid or recognized
000020
in this State. This section shall not prohibit or limit
parties, other than the State or its political
subdivisions, from entering into contracts or other
legal instruments. S.C. Const. art. XVII, 15.

South Dakota: 2006; The uniting of two or more
persons in a civil union, domestic partnership, or
other quasi-marital relationship shall not be valid or
recognized. S.D. Const. art. XXI, 9.

Texas: 2005; This state or a political subdivision of
this state may not create or recognize any legal
status identical or similar to marriage. Texas Const.
Art. I, 32.

Utah: 2004; No other domestic union, however
denominated, may be recognized as a marriage or
given the same or substantially equivalent legal
effect. Utah Const., Art. I, 29.

Virginia: 2006; :This Commonwealth and its
political subdivisions shall not create or recognize a
legal status for relationships of unmarried
individuals that intends to approximate the design,
qualities, significance, or effects of marriage. Nor
shall this Commonwealth or its political subdivisions
create or recognize another union, partnership, or
other legal status to which is assigned the rights,
benefits, obligations, qualities, or effects of
marriage. Virginia Const., Art. I, 15-A.

Wisconsin: 2006; Only a marriage between one
man and one woman shall be valid or recognized as a
marriage in this state. A legal status identical or
substantially similar to that of marriage for
000021
unmarried individuals shall not be valid or
recognized in this state. Wisconsin Const., Art. XIII,
13 But Compare Appling v. Doyle, 2012 WL
6633863 (Wisc. Ct. App., Dec. 20, 2012) (publication
decision pending) (noting that Wisconsins limited
domestic partnership law does not violate
Wisconsins Constitution.).
000022





TAB 10




Court Decisions on the Marriage Issue

State Appellate Court Decisions

Case Decision
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) Genderless marriage required
Dean v. District of Columbia, 653 A.2d
307 (D.C. 1995)
Genderless marriage not required
Baehr v. Miike, 910 P.2d 112. (Haw.
1996)
Genderless marriage required
Brause v. Bureau of Vital Statistics, 3AN-
95-6562 CI, 1998 WL 88743 (Alaska
Super. Ct. Feb. 27, 1998)
Genderless marriage required
Baker v. Vermont, 744 A.2d 264 (Vt.
1999)
At least civil union required
Standhardt v. Super. Ct., 77 P.3d 451
(Ariz. Ct. App. 2003)
Genderless marriage not required
Goodridge v. Dept of Pub. Health, 798
N.E.2d 941 (Mass. 2003)
Genderless marriage required
Li v. Oregon, 110 P.3d 91 (Or. 2004) Genderless marriage required
Morrison v. Sadler, 821 N.E.2d 15 (Ind.
Ct. App. 2005)
Genderless marriage not required
Hernandez v. Robles, 855 N.E.2d 1 (N.Y.
2006)
Genderless marriage not required
Andersen v. King County, 138 P.3d 963
(Wa. 2006)
Genderless marriage not required
Lewis v. Harris, 908 A.2d 196 (N.J. 2006) At least civil union required
Conaway v. Deane, 932 A.2d 571 (Md.
2007)
Genderless marriage not required
In re Marriage Cases, 183 P.3d 384 (Cal.
2008)
Genderless marriage required
Kerrigan v. Commr of Pub. Health, 957
A.2d 407 (Conn. 2008)
Genderless marriage required
Varnum v. Brien, 763 N.W.2d 862 (Iowa
2009)
Genderless marriage required

000023
Federal Court Decisions

In re Kandu, 315 B.R. 123 (Bankr. W.D.
Wash. 2004)
Genderless marriage not required
Wilson v. Ake, 354 F.Supp.2d 1298 (M.D.
Fla. 2005)
Genderless marriage not required
Citizens for Equal Prot. v. Bruning, 455
F.3d 859 (8th Cir. 2006)
Genderless marriage not required
Perry v. Schwarzenegger, 704 F. Supp. 2d
921 (N.D. Cal. 2010).
Genderless marriage required
Gill v. Office of Personnel Mgmt., 699
F.Supp.2d 374 (D. Mass. 2010)
Genderless marriage required
In re Balas & Morales, 449 B.R. 567
(Bankr. C.D. Cal. 2011)
Genderless marriage required
Perry v. Brown, 671 F.3d 1052 (9th Cir.
2012)
Genderless marriage required
Golinski v. Office of Personnel Mgmt., 824
F.Supp.2d 968 (N.D. Cal. 2012)
Genderless marriage required
Massachusetts v. Health & Human
Servs., 862 F.3d 1 (1st Cir 2012)
Genderless marriage required
Windsor v. United States, 833 F. Supp. 2d
394 (S.D.N.Y. 2012)
Genderless marriage required
Pedersen v. Office of Personnel Mgmt.,
881 F.Supp.2d 294 (D. Conn. 2012)
Genderless marriage required
Jackson v. Abercrombie, 884 F.Supp.2d
1065 (D. Haw. 2012)
Genderless marriage not required
Sevcick v. Sandoval, 911 F.Supp.2d 996
(D. Nev. 2012)
Genderless marriage not required
Windsor v. United States, 699 F.3d 169
(2d Cir. 2012)
Genderless marriage required
United States v. Windsor, 570 U.S. ___;
133 S.Ct. 2675 (2013)
Federal government must defer to state
choice to allow genderless marriage.

000024





TAB 11




PENDING CIVIL ACTIONS ADDRESSING
THE MARRIAGE ISSUE

(through October 1, 2013)


State Courts

Arkansas: Wright v. Beebe, No. 60CV-13-2662 (filed July 2013,
Pulaski County Circuit Court)
Illinois: Darby v. Orr, No. 12 CH 19718 (filed May 2012, Cook
County Circuit Court)
Kentucky: Kentucky Equality Federation v. Beshear, No. 13-CI-
1074 (filed Sep. 2013, Franklin County Circuit Court)
New Mexico: Griego v. Oliver, No. 34,306 (filed Aug. 2013, New
Mexico Supreme Court) (likely to address whether previous lower
court cases which had held genderless marriage is required by state
Constitution are correct)
New Jersey: Garden State Equality v. Dow, No. L-1729-11 (filed
Sept. 27, 2013, Mercer County Superior Court) (requiring
genderless marriage), appeal anticipated
Pennsylvania #1: Commonwealth v. Hanes, No. 379 MD 2013 (filed
Sept. 23, 2013, Pennsylvania Commonwealth Court) (requiring
County Clerk to uphold man-woman marriage), appeal anticipated
Pennsylvania #2: Cucinotta v. Commonwealth, No. 451 MD 2013
(filed Sept. 6, 2013) (Same-sex couple who received marriage
license prior to Commonwealth v. Hanes filed suit in Harrisburg
Commonwealth Court.); see also New court challenges from 21
couples filed to overturn gay marriage ban, Pennlive.com (Sep 25,
2013, 10:33 p.m.), available at
http://www.pennlive.com/midstate/index.ssf/2013/09/new_court_cha
llenge_from_21_co.html

Federal Courts

Arkansas: Jernigan v. Crane, No.4:13-cv-00410 (filed July 2013,
E.D. Ark.)
Hawaii: Jackson v. Abercrombie, 884 F.Supp.2d 1065 (filed Aug.
2012, D. Haw.) (affirming man-woman marriage), appeal
pending (12-16995; 9
th
Cir.)
Kentucky: Bourke v. Breshear, No. 3:13-CV-750 (filed July 2013,
W.D. Ky.)
Louisiana: Robicheaux v. Caldwell, No. 13-CV-05090 (filed July
2013, E.D. La.)
000025
Michigan: DeBoer v. Snyder No. 12-cv-10285 (filed July 2013, E.D.
Mich.)
Nevada: Sevcik v. Sandoval, 911 F.Supp.2d 996 (filed Nov. 2012 D.
Nev.) (affirming man-woman marriage), appeal pending (12-17668;
9
th
Cir.)
North Carolina: Fisher-Borne v. Smith, No. 1:12-cv-00589 (filed
June 2012; M.D.N.C.)
Ohio: Obergefell v. Kasich, No. 13-501 (filed July 2013, expanded
Sept. 2013, S.D. Ohio); see Order Granting Plaintiffs Motion for a
Temporary Restraining Order, available at
http://sblog.s3.amazonaws.com/wp-content/uploads/2013/07/Judge-
Black-ruling-onmarriage-7-22.pdf. (declaring the case not a
complicated one and enacting injunctive relief pending final
decision)
Oklahoma Bishop v. Howe-Smith, No. 04-cv-848 (filed 2004, N.D.
Okla.) (procedure has lengthened case)
Pennsylvania #1: Whitewood v. Corbett, No. 1:13-cv-1861 (filed July
2013, M.D. Penn.)
Pennsylvania #2: Palladino v. Corbett, No. 2:13-cv-5641 (filed Sept.
2013, E.D. Penn.)
South Carolina: Bradacs v. Haley, No. 3:13-cv-02351 (filed Aug.
2013, D.S.C.)
Utah: Kitchen v. Herbert, No. 2:13-cv-217, (filed March 2013, D.
Utah)
Virginia #1: Bostic v. McDonnell, No. 2:13-cv-395 (filed July 2013
E.D. Va.)
Virginia #2: Harris v. McDonnell No. 5:13-cv-00077 (filed Aug.
2013, W.D. Va.) (class action)
West Virginina: McGee v. Cole, No. 3:13-cv-24068 (filed Oct. 2013)
000026





TAB 12









TAB 13




1
QUESTIONS PRESENTED
Hollingsworth, et al v. Perry, et aL
1. Whether the Equal Protection Clause of the
Fourteenth Amendment prohibits the State of
California from defining marriage as the union of a
man and a woman.
United States v. Windsor, et al
1. Whether Section 3 of the Defense of Marriage
Act, 1 U.S.C. 7, violates the equal protection
component of the Due Process Clause of the Fifth
Amendment.
000041
ll
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................................... i
TABLE OF CONTENTS ............................................ ii
TABLE OF AUTHORITIES ....................................... iv
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF THE ARGUMENT ........................... 3
ARGUMENT ............................................................... 5
I. Compelling Evidence Shows that Children
Benefit from the Unique Parenting
II.
Contributions of Both Men and Women ............. 5
Children Raised By Gay and Lesbian Parents
and Intact Biological Parents Is Empirically
Undermined by Significant Methodological
Limitations ........................................................... 13
A. The APA studies are based on small
sample sizes ........................................... 15
B.
on homogeneous samples ...................... 17
C. Most of the samples in the APA-cited
studies relied on non-random,
convenience sampling ........................... 19
000042
lll
III. The Largest Population-Based Studies Do Not
About Child Outcomes Among Same-Sex
Parents ................................................................. 21
CONCLUSION ........................................................... 29
000043
lV
TABLE OF AUTHORITIES
CASES
Bowen v. GilliaTd,
483 U.S. 587 (1987) .............................................. 5
Lofton v. SeaetaTy of the DepaTtment of ChildTen
and Family SeTvices,
358 F.3d 804 (11th Cir. 2004) ............................ 15
PeTTY v. SchwaTzeneggeT,
704 F. Supp. 2d 921 (N.D. Cal. 2010) .................. 7
OTHER AUTHORITIES
Douglas W. Allen et al.,
NontTaditional Families and Childhood
PmgTess Thmugh School: A Comment on
Rosenfeld,
Demography, November 2012,
http :f/link.springer.com/article/1 0.1007 Is 13524-
0120169-x/fulltext.html .............................. 15, 28
Douglas W. Allen,
High School GTaduation Rates Among
ChildTen of Same-Sex Households (2012) ......... 23
000044
v
Paul R. Amato,
More Than Money? Mens Contributjons to
Their Children's Lives?,
in Men in Families, When Do They Get
Involved? What Difference Does It Make? 267
(1998) 9
Paul R. Amato & Fernando Rivera,
Paternal Involvement and Children's Behavior
Problems,
61 Journal of Marriage and the Family 375
(1999) .................................................................. 11
Gunnar Anderson et al.,
The Demographics of Same-Sex Marriages In
Norway and Sweden,
43 Demography 79 (2006) .................................. 26
Marilyn Coleman et al.,
Heinvestigating Remarriage: Another Decade
of Progress,
62 Journal of Marriage and the Family 1288
(2000) .................................................................. 16
Scott Coltrane,
Family Man 54 (1996) .......................................... 7
Suzanne A. Denham et al.,
Prediction of Externalizing Behavior Problems
From Early to Middle Childhood: The Hole of
Parental Socialization and Emotion
Expression, in Development and
Psychopathology 23 (2000) ................................ 8-9
000045
VI
M. De Wolff & M. van lzjendoorn,
Sensitivity and Attachment: A Meta -Analysis
on Parental Antecedents of Infant Attachment,
68 Child Development 571 (1997) ....................... 7
Greg Duncan & Jeanne Brooks-Gunn,
Consequences of Growing Up Poor(1999) .......... 9
Ruth Feldman,
Oxytocin and Social Affiliation In Humans,
61 Hormones and Behavior 380 (2012) ............... 6
Mark V. Flinn et al.,
Fluctuating Asymmetry of Stepchildren,
20 Evolution of Human Behavior 465 (1999) .... 16
Norval D. Glenn,
The Struggle for Same-Sex Marriage,
41 Society 27 (2004) ....................................... 9, 21
Colleen Hoff & Sean Beougher,
Sexual Agreements Among Gay Male Couples,
39 Archives of Sexual Behavior 774 (2010) ....... 26
Sandra L. Hofferth et al.,
The Demography of Fathers: What Fathers Do,
in Handbook of Father Involvement:
Multidisciplinary Perspectives 81 (2002) ............ 7
Michael E. Lamb,
Fathers: Forgotten Contributors to Ch1ld
Development,
18 Human Development 245 (1975) .................... 6
000046
Vll
Robert Lerner & Althea K. Nagai,
No Basis: What the Studies Don't Tell Us
About Same-Sex Parenting (Marriage Law
Project, 200 1) ...................................................... 20
Laura Lott-Whitehead and Carol T. Tully,
The Fam1ly Lives of Lesbian Mothers,
63 Smith College Studies in Social Work 275
(1993) .................................................................. 18
Eleanor Maccoby,
The Two Sexes 266 (1998) ......................... 8, 9, 11
M. Main & J. Solomon,
Discovery of an Insecure-Disorganized/
Disoriented Attachment Pattern,
in Affective Development in Infancy 95 (1986) ... 7
Wendy D. Manning & Kathleen A. Lamb,
Adolescent Well-Being in Cohabiting; Married,
& Single-Parent Families,
65 Journal of Marriage and the Family 876
(2003) .................................................................... 5
Loren D. Marks,
Same-Sex Parenting and Children's Outcomes:
A Closer Examination oftheAmerican
Psychological Association's Brief on Lesbian
and Gay Parenting; 41 Social Science
Research 735 (2012) ......................... 15, 17, 18, 19
Sara McLanahan & Gary Sandefur,
Growing Up Wi'th a Single Parent: What
Hurts, What Helps 1 (1994) ............................. 5, 9
000047
Vlll
Brent Miller et aL,
Compansons of Adopted and Non-Adopted
Adolescents In a Large, Nationally
Representative Sample,
71 Child Development 1458 (2000) ................... 14
Kristen Anderson Moore, et al,
Marriage from a Child's Perspective,
Child Trends Research Brief (2002) .................... 5
C.A. Nelson and M. Bosquet,
Neurobiology of Fetal and Infant Development:
Implications for Infant Mental Health,
in Handbook oflnfant Mental Health 37, (2d
ed. 2000) ............................................................... 7
Affidavit of Professor Steven Lowell Nock,
Halpern v. Attorney General of Canada,
Case No. 684/00 (Ontario Sup. Ct. Justice
200 1), http :ffmarriagelaw .cua.ed u/Law/cases/
Canada/ontario/halpern/aff_nock.pdf ................ 20
Barack Obama,
Statement at Apostolic Church of God (June
15, 2008), http://www.realclearpolitics.com/
articles/2008/06/obamas_speech_on_fatherhood.
htmL .................................................................... 12
Daniel Paquette & Mark Bigras,
The Risky Situation: A Procedure for Assessing
the Father-Child Activation Relationship,
180 Early Childhood Development and Care 33
(2010) 10
000048
IX
Ross D. Parke,
Fatherhood 7 (1996) ....................................... 8, 10
C.J. Patterson,
Children of Lesbian and Gay Parents,
63 Child Development 1025 (1992) ................... 18
David Popenoe,
Life Without Father: Compelling New
Evidence that Fatherhood & Marriage are
Indispensable for the Good of Children &
Society
146 (1996) ....................................................... 6, 10
Thomas G. Powers et al.,
Compliance and Self-Assertion: Young
Children s Responses to Mothers Versus
Fathers,
30 Developmental Psychology 980 (1994) ......... 11
Mark D. Regnerus,
How Different Are the Adult Children of
Parents Who Have SameSex Relationships?
Findings from the New Family Structures
Study,
41 Social Science Research 752 (2012) ....... passim
Mark D. Regnerus,
Parental Same-Sex Relationships, Family
Instability, and Subsequent Life Outcomes fOr
Adult Children: Answering Critics of the New
Family Structures Study with Additional
Analysis,
41 Social Science Research 1367 (2012) ..... passim
000049
X
Mark D. Regnerus & Laura B. Luchies,
The Parent-Child Relationship and
Opportunities fOr Adolescents' First Sex,
27 Journal of Family Issues 159 (2006) ............ 11
Michael J. Rosenfeld,
Nontraditional Families and Childhood
Progress Through School,
47 Demography 755 (2010) ................................ 27
S. Sarantokas,
Children In Three Contexts: Fam1ly,
Education, and Social Development,
21 Children Australia 23 (1996) ........................ 17
Shmuel Shulman and Moshe M. Klein,
Distinctive Role of the Father in Adolescent
Separation Individuation,
62 New Directions for Child and Adolescent
Development 41 (1993) ................................. 10-11
Walter R. Schumm,
What Was Really Learned From Tasker &
Golombok's (I 995) Study of Lesbian & Single
Parent Mothers?,
95 Psychological Reports 422 (2004) ........... 19, 20
Walter R. Schumm,
Methodological Decisions and the Evaluation of
Possible Effects of Different Family Structures
on Children: The New Family Structures
Survey,
41 Social Science Research 1357 (2012) ............ 27
000050
XI
Tom A. Snijders,
Estimation on the Basis of Snowball Samples,
36 Bulletin de Methodologie Sociologique 59
(1992) 19
Judith Stacey & Timothy Biblarz,
(How) Does the Sexual Orientation of Parents
Matter?,
66 American Sociological Review 159 (2001) .... 21
Fiona Tasker,
Lesbian Mothers, Gay Fathers and Their
Children: A Review,
26 Developmental and Behavioral Pediatrics
224 (2005) ........................................................... 18
W. Brad Wilcox, et al.,
Why Marriage Matters: Twenty-Six
Conclusions fi-om the Social Sciences, 14 (3d
ed. 20 11) ............................................................. 12
James Q. Wilson,
The Marriage Problem 169 (2002) ..................... 12
000051
1
INTEREST OF AMICI CURJAEI
Amici have studied and published on parental
and household distinctions and their association with
child and young-adult developmental outcomes.
Amici's expertise in these fields would assist the
cases. Amici include (in alphabetical order):
Douglas W. Allen (Ph.D., Economics, University
of Washington) is Burnaby Mountain Professor of
Economics at Simon Fraser University, BC, Canada.
David J. Eggebeen (Ph.D., Sociology, University
of North Carolina) is an Associate Professor of
Human Development and Sociology at Penn State
University.
Alan J. Hawkins (Ph.D., Human Development
and Family Studies, Penn State University) is a
Professor of Family Life at Brigham Young
University.
1
In Case No. 12144, all parties granted blanket consent to the
filing of amicus curiae briefs in support of either party or
neither party, and in Case No. 12-307, the petitioner, United
States of America, and Respondent Bipartisan Legal Advisory
Group of the United States House of Representatives granted
same: these consent letters are on file with the Clerk of the
s written consent to the filing
of this brief in Case No. 12-307 is filed contemporaneously. In
accordance with Rule 37.6, amici curiae states that no counsel
for any party authored this brief in whole or in part, and that no
counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief, and that no person
or entity, other than amici curiae, made a monetary
contribution to the preparation or submission of this brief.
000052
2
Byron R. Johnson (Ph.D., Criminology, Florida
State University) is a Distinguished Professor of
Social Sciences at Baylor University.
Catherine Pakuluk (Ph.D., Economics, Harvard
University) is an Assistant Professor of Economics at
Ave Maria University.
Joseph Price (Ph.D., Economics, Cornell
University) is an Assistant Professor of Economics at
Brigham Young University.
Mark D. Regnerus (Ph.D., Sociology, University
of North Carolina) is an Associate Professor of
Sociology at the University of Texas at Austin, and a
Faculty Research Associate at the Population
Research Center of the University of Texas.
000053
3
SUMMARY OF THE ARGUMENT
A persistent claim by those supporting same-sex
outcomes of children raised by a biological mother
and father and those who have been raised by two
women or two men. That claim was made to the
courts below, and will no doubt be made to this Court
by associations like the American Psychological
indicates, the claim is difficult to support because
involving non-random, non-representative samples,
often with relatively few participants. Specifically,
the vast majority of the studies were based on
samples of fewer than 100 parents (or children), and
typically representative only of well-educated, white
women (parents), often with elevated incomes. These
are hardly representative samples of the lesbian and
gay population raising children, and therefore not a
sufficient basis to make broad claims about child
outcomes of same-sex parenting structures.
These and other methodological limitations make
suspect. The claim also contradicts longstanding
research asserting the view that the ideal
environment for raising children is a stable biological
mother and father. The science on comparative
parenting structures is relatively new, especially that
concerning same-sex households. Therefore, a claim
that another parenting structure provides the same
level of benefit should be rigorously tested and based
on sound methodologies and representative samples.
000054
4
Nearly all ofthe studies cited by the APA fail to meet
those criteria.
Indeed, the only studies that were based on large,
random, representative samples tended to reveal the
opposite conclusion, finding significant differences in
the outcomes of children raised by parents in a same-
sex relationship and those raised by a married
biological mother and father. What is clear is that
much more study must be done on these questions.
But there is no dispute that a biological mother and
father provide, on average, an effective and proven
environment for rmsmg children. And it is
reasonable to conclude that a mother and father
function as a complementary parenting unit and that
each tends to contribute something unique and
beneficial to child development.
The State of California and the federal
government thus have a rational interest in
supporting that proven parenting structure by
reserving the title and status of marriage to unions
comprised of a man and a woman.
000055
5
ARGUMENT
I. Compelling Evidence Shows that Children
Benefit from the Unique Parenting
Contributions of Both Men and Women.
It is a well-established and well-regarded
household with only one biological parent are worse
off, on average, than children who grow up in a
household with both of their biological parents ...
Sara McLanahan & Gary Sandefur, Growing Up
With a Single Parent: What Hurts, What Helps 1
(1994); see also Wendy D. Manning & Kathleen A.
Lamb, Adolescent Well-Being in Cohabiting;
Married, & Single-Parent Families, 65 J. Marriage &
advantage of marriage
appears to exist primarily when the child is the
Anderson Moore, et a!, Maniage iiom a Child's
Perspective, Child Trends Research Brief at 1-2
e presence of two parents
. but the presence of two biological parents that
Indeed, a few decades ago Justice William
Brennan recognized what was likely considered a
very unremarkable proposition when he stated that
Bowen v.
G1lliard, 483 U.S. 587, 614 (1987) (Brennan, J.
dissenting). Experts have long contended that both
mothers and fathers make unique contributions to
parenting. As sociologist David Popenoe explains,
000056
6
idea that gender-differentiated parenting 1s
important for human development and that the
contribution of fathers to childrearing is unique and
Life Without Father:
Compelling New Evidence that Fatherhood &
Marriage are Indispensable for the Good of Children
& Society
expert, Professor Michael Lamb, advocated that same
view prior to his advocacy for samesex marriage,
crucial and qualitatively different roles in the
Fathers:
Forgotten Contributors to Child Development, 18
Human Dev. 245, 246 (1975).
Current research on the psychosocial
development of children continues to affirm that the
complementarity of an intact family, with a mother
and a father serving unique relational roles, is
See, e.g.,
Ruth Feldman, Oxytocin and Social Affiliation In
Humans, 61 Hormones & Behav. 380391 (2012)
(noting the different roles that mothers and fathers
play across species, the importance of those
differences to human development, and suggesting
that human oxytocin systems may account for the
different yet complementary maternal and paternal
functions). Indeed, in his testimony in the
Proposition 8 trial below, Dr. Lamb admitted he had
previously stated that men and women are not
differences between maternal and paternal behavior
000057
7
biological gender or sex roles, than to either their
degree of involvement in infant care or their
attitudes regarding the desirability of paternal
Peny v.
704 F. Supp. 2d 921 (N.D. Cal.
2010), trial transcript at 1064 & 1068.
deal of scholarship on the distinct ways in which
separate maternal and paternal contributions
promote positive child development outcomes. For
example, distinctive maternal contributions are
numerous and significant. The natural biological
responsiveness of a mother to her infant fosters
critical aspects of neural development and
capabilities for interactivity in the infant brain.2
Mothers are also able to extract the maximum return
on the temporal investments of both parents in a
two-parent home because mothers provide critical
direction for fathers on routine caretaking activities,
particularly those involving infants and toddlers. See
Sandra L. Hofferth et a!., The Demography of
Fathers: What Fathers Do, in Handbook of Father
Involvement: Multidisciplinary Perspectives 81
(Catherine Tamis-Lamonda & Natasha Cabrera eds.,
2002); Scott Coltrane, Family Man 54 (1996). This
2
See C.A. Nelson & M. Bosquet, Neurobiology of Fetal and
Infimt Development: Implications for infant Mental Health, in
Handbook of Infant Mental Health 37-59, (C.H. Zeanah Jr. ed.,
2d ed. 2000); M. De Wolff & M. van Izjendoorn, Sensitivity and
Attachment: A Meta-Analysis on Parental Antecedents of Inta.nt
Attachment, 68 Child Dev. 571-91 (1997); M. Main & J.
Solomon, Discovery of an Insecure-Disorganized Disoriented
Attachment Pattern, in Affective Development in Infancy 95-
124 (T.B. Brazelton & M.W. Yogman eds., 1986).
000058
8
direction is needed in part because fathers do not
share equally in the biological and hormonal
interconnectedness that develops between a mother
and a child during pregnancy, delivery, and lactation.
In comparison to fathers, mothers generally
maintain more frequent and open communication
and enjoy greater emotional closeness with their
children, in turn fostering a sense of security in
children with respect to the support offered by the
family structure. Ross D. Parke, Fatherhood 7
(Developing Child Series, Jerome Bruner et al. eds.,
predictable, interactive, and geared toward joint
problemsolving, which helps children to feel
comfortable in the world they inhabit. Eleanor
Maccoby, The Two Sexes 26667 (1998)3; see also
Parke, supra at 5. Mothers also impose more limits
and tend to discipline more frequently, albeit with
greater flexibility when compared with fathers.
Maccoby, supra at 273.
Mothers also uniquely play a greater role in
cultivating the language and communication skills of
their children. Parke, supra at 6. Mothers help
children to understand their own feelings and
respond to the feelings of others, in part by
encouraging open discussion of feelings and emotions
within the family unit. See Suzanne A. Denham et
al., Prediction of Externalizing Behavior Problems
a Professor Maccoby, who is a distinguished feminist
psychologist at Stanford University and who championed the
idea that sex differences were caused only by socialization, is
now acknowledging the importance of biology in explaining sex
differences in parenting. Maccoby, supra at 314.
000059
9
From Early to Middle Childhood: The Role of
Parental Socialization and Emotion Expression, in
Development and Psychopathology 23-45 (2000);
Maccoby, supra at 272. Active maternal influence
and input is vital to the breadth and depth of
in connecting children to friends and extended
family. Paul R. Amato, More Than Money? Men's
Contributions to Their Children's Lives?, in Men in
Families, When Do They Get Involved? What
Difference Does It Make? 267 (Alan Booth & Ann C.
Crouter eds., 1998).
Fathers also make distinctive contributions to the
upbringing of their children, and positive paternal
contributions play a key role in avoiding a variety of
negative outcomes that arise with greater frequency
in homes where a father is not present. Having a
father is associated with an increase in positive
outcomes for children in domains such as education,
physical health, and the avoidance of juvenile
delinquency. McLanahan & Sandefur, supra (1994);
Greg Duncan & Jeanne Brooks-Gunn, Consequences
of Growing Up Poor (1999). As Professor Norval
for believing that both fathers and mothers are
important, and the huge amount of evidence of
relatively poor average outcomes among fatherless
children makes it seem unlikely that these outcomes
are solely the result of the correlates of
Norval D. Glenn, The Struggle for Same-Sex
Marriage
000060
10
Fathers engage proactively m spontaneous play
with their fathers quickly learn that biting,
kicking, and other forms of physical violence are not
supra at 144. A study
conducted by developmental psychologist Daniel
Paquette found that fathers are also more likely to
supervise children at play while refraining from
The
Risky Situation: A Procedure for Assessing the
Father-Child Activation Relationship, 180 Early
Childhood Dev. & Care 33-50 (2010).
4
Boys who do
not regularly experience the love, discipline, and
modeling of a good father are more likely to engage in
they reject and denigrate all that is feminine and
instead seek to prove their masculinity by engaging
in domineering and violent behavior. Popenoe, supra
at 157.
Paternal modes of play activity are only one
example of the ways in which fathers encourage their
children to take risks. Compared to mothers, fathers
are more likely to encourage children to try new
things and to embrace novel situations and
challenges. See Parke, supra at 6. One study
summarized this aspect of paternal input and
conveyed the feeling that they can rely on their
4
See http://www.msnbc.msn.com/id/37741738 (last visited
January 25, 2012).
000061
11
differentiation from the family and consolidation of
Klein, Distinctive Role of the Father in Adolescent
Separation-Individuation, 62 New Dir. Child &
Adolesc. Dev. 41, 53 (1993).
Fathers also tend to utilize a different discipline
style than mothers, in that they discipline with less
frequency, but greater predictability and less
flexibility in terms of deviating from pre-determined
consequences for particular behavior. See Thomas G.
Powers et al., Compliance and Self-Assertion: Young
Children's Responses to Mothers Versus Fathers, 30
Dev. Psychol. 980-89 (1994). Children respond
differently to paternal discipline, and are
comparatively more likely to resist maternal
commands and comply with paternal requests.
Maccoby, supra at 274-75. This may be one reason
why a number of studies have found that paternal
influence and involvement plays an outsized role in
preventing adolescent boys from breaking the law,
and lowering the odds that a teenage girl will become
pregnant. See, e.g., Paul R. Amato & Fernando
Rivera, Paternal Involvement and Children's
Behavior Problems, 61 J. Marriage & Fam. 375-84
(1999) (finding that paternal involvement is linked to
lower levels of delinquency and criminal activity,
even after controlling for maternal involvement);
Mark D. Regnerus & Laura B. Luchies, The Parent
Child Relationship and Opportunities for
Adolescents' First Sex, 27 J. Fam. Issues 159-83
(2006) (study of 2000 adolescents noted that father-
daughter relationship, rather than mother-daughter
relationship, was an important predictor of whether
000062
12
and when adolescent girls transitioned to sexual
activity); see also W. Brad Wilcox, et al., Why
Ma1riage Matters: Twenty-Six Conclusions from the
Social Sciences, 14, 22-23 (3d ed. 2011) (discussing
evidence suggesting that female sexual development
is slowed by early childhood exposure to pheromones
of biological father, and accelerated by regular early
childhood exposure to pheromones of adult male who
As President Obama has noted:
grow up without a father are five times
more likely to live in poverty and commit
crime; nine times more likely to drop out of
schools, and twenty times more likely to
end up in prison. They are more likely to
have behavioral problems, or run away
from home or become teenage parents
themselves. And the foundations of our
community are weaker because of it.
Barack Obama, Statement at Apostolic Church of
God (June 15, 2008)5; see also James Q. Wilson, The
Marriage Problem
scientific evidence seems clearly to support the view
In sum, a substantial body of evidence exists
documenting that both mothers and fathers make
sex parenting structures, by definition, exclude either
'A vail able at
http://www.realclearpolitics.com/articles/2008/06/obamas_
speech_on_fatherhood.html Oast visited January 25, 2013).
000063
13
a mother or a father. Certainly samesex couples. like
other parenting structures, can make quality and
successful efforts in raising children. That is not in
question. But the social science evidence, especially
evidence founded on conclusions from population
based samples, suggests that there remain unique
advantages to a parenting structure consisting of
both a mother and a father, political interests to the
contrary notwithstanding. Therefore it remains
rational for government to provide distinctive
recognition and incentive to that proven parenting
structure through the status of marriage.
II.
Children Raised By Gay and Lesbian Parents
and Intact Biological Parents Is Empirically
Undermined by Significant Methodological
Limitations.
Decades of study on various other parenting
structures yield the near uniform conclusion that a
biological mother and father provide optimal child
outcomes. Mark Regnerus, How Different Are the
Adult Children of Parents Who Have SameSex
Relationships? Findings from the New Family
Structures Study, 41 Soc. Sci. Research 752, 763
(2012) [hereinafter How So the claim that
another parenting relationship produces child
outcomes just as good as (or even better than) intact
biological parents is a surprising proposition, to say
the least, and one that must be rigorously tested (and
until then, viewed with healthy suspicion).6
6 Although outcomes of children raised by adoptive parents are
often positive, outcomes for those children are not typically as
positive as children raised by biological parents in an intact
000064
14
A closer examination of the studies purporting to
show no difference between same-sex parenting and
parenting by biological parents suggests that they
cannot bear the weight that advocates place on them.
Most striking is that all but one failed to involve a
large, random, representative sample of the
population. While this can be attributed to the fact
that such a sample is difficult to locate randomly, it
nevertheless ought to raise concern when they are
used to support broad public policy changes, like
those at issue in this case. In short, it is faulty to
with such thin support_
The Eleventh Circuit has recognized these
limitations in the research on gay and lesbian
methodologies and conclusions, such as the use of
small, self-selected samples; reliance on self-report
instruments; politically driven hypotheses; and the
use of unrepresentative study populations consisting
marriage, despite the rigorous screening process that adoption
entails. Regnerus, How D1ffei"ent?, supra
and consistently revealed important and wide-ranging
differences, on average, between adopted children and biological
ones. In fact, these differences have been so pervasive and
consistent that adoption experts now emphasize that
is critical for both parents and
(citing Brent Miller et a!., Comparisons of Adopted and Non-
Adopted Adolescents In A Large, Nationally Representative
Sample, 71 Child Dev. 1458 (2000)).
000065
15
Lofton v. Secy of the Dep't of Children and Family
Servs., 358 F.3d 804, 825 (11th Cir. 2004).
A The APA studies are based on small sample
s1zes.
Most of the studies that the APA relies on to
small, non-representative, convenience samples of
fewer than 100 participan Same
Sex Parenting and Children's Outcomes: A Closer
Examination of the American Psychological
Association's Brief on Lesbian and Gay Parenting, 41
Soc. Sci. Res. 735, 736-38 (2012); see also Douglas W.
Allen et al., Nontraditional Families and Childhood
Progress Through Schoo]: A Comment on Rosenfeld,
Demography November 2012,
http:; /link. springer .com/article/1 0.1007 Is 1352 4-012-
considerable research on the effect of family
structure on child outcomes, almost none of the
research using nationally representative samples has
included same-sex parents as
The hallmark of a rigorous study is a large,
representative pool of participants drawn from a
population-based random sample. Regnerus, How
Different?, supra at 754 (2012). Indeed, it is very
difficult to draw reliable conclusions from the data
used in small samples because the conclusions from
such limited studies cannot be confidently
extrapolated to the general population and the risk of
erroneously attributing statistical insignificance to
between-group comparisons (that is, mistakenly
concluding there are no differences between groups)
is high. Marks, supra
000066
16
matched samples, as a variety of studies have done,
fails to mitigate the challenge of locating
statistically-significant differences when the sample
size is small. This is a concern in all social science,
but one that is doubly important when there may be
motivation to confirm the null hypothesis (that is,
that there are in fact no statistically-significant
How
Different?, supra at 754.
Because of the small sample sizes m these
studies, expected differences in children raised by
biological and non-biological parents could not be
measured in a meaningful way. For example, it is
well established that having a stepfather in the home
tends on average to result in less optimal child
outcomes. Mark V. Flinn et al., Fluctuating
Asymmetry of Stepchildren, 20 Evol. Hum. Behav.
e absence of a genetic
relationship between stepchildren and stepparents
including specific behaviors that affect nutrition,
sleep routines, hygiene, medical attention, work
loads, instruction, comforting, protection and so
Coleman et al., Reinvestigating Remarriage: Another
Decade of Progress, 62 J. Marriage & Fam. 1288,
stepchildren were similar to children living with
single mothers on the preponderance of outcome
measures and that step-children generally were at a
greater risk for problems than were children living
000067
17
parent. But because of the small sample sizes of
same-sex parents represented in the studies (and
especially of gay fathers), these outcome differences
have not often surfaced (or even been evaluated),
raising additional questions about the reliability of
the studies purporting to show no differences.
Alternately, comparisons are most often made
between children in heterosexual stepfamilies and
those in gay unions, which overlook the general
consensus about the importance of two biological
connections to begin with.
Even one of the larger studies that the AP A cites,
but does not discuss, showed significant outcome
differences between children raised by same-sex
parents and those raised by biological parents in an
that children of married couples are more likely to do
well at school m academic and social terms, than
Marks, supra at 742-43 (quoting S. Sarantokas,
Children In Three Contexts: Family, Education, and
Social Development, 21 Children Australia 23 (1996),
puzzling de-emphasis of it).
homogeneous samples.
Not only are most of the studies claiming no
differences in same-sex parenting based on small
sample s1zes, they also tend to draw upon
ivileged lesbian mothers
supra at
739. For example, many of the studies cited by the
000068
18
APA include no minorities with samples
predominantly composed of white, well-educated,
middle- to upper-class women. Id. at 738. As one
small and biased toward well-educated, white women
with high incomes. These factors have plagued other
[same-sex parenting] studies, and remain a concern
Id. (quoting Laura Lett-
Whitehead and Carol T. Tully, The Family Lives of
Lesbian Mothers, 63 Smith Coll. Studies Soc. Work
275 (1993)); see also C.J. Patterson, Children of
Lesbian and Gay Parents, 63 Child Dev. 1025, 1029
communities, both in the United States and abroad,
samples of children [and parents] have been
relatively homogenous . . . . Samples for which
demographic information was reported have been
described as predominantly Caucasian, well
And very few of the AP A-cited studies on same-
sex parenting analyzed the outcomes of children
raised by gay fathers. Only eight of the fifty-nine
cited studies included gay fathers, and only four of
those included a heterosexual comparison group.
Marks, supra
not considered developmental outcomes for children
brought up from birth by single gay men or gay male
couples (planned gay father families), possibly
because of the difficulty of locating an adequate
Lesbian Mothers, Gay
Fathers and Their Children: A Review, 26 Dev. &
Behav. Pediatr. 224, 225 (2005).
000069
19
C. Most of the samples in the APA-cited studies
relied on non-random, convenience sampling.
It is not surprising that the samples in these
studies are so homogenous, given that most of the
people in them were recruited by use of non-random,
convenience (snowball) sampling. Regnerus, How
Dif!erent?, supra at 753 (2012). For example, one
data -collection effort that has been the subject of at
least 19 different peer-reviewed publications to date
Id. This method of
recruitment was common among the APA-cited
studies. Id.
to generalize the findings of such a specific subgroup
to the general population. Id. (quoting Tom A
Snijders, Estimation on the Basis of Snowball
Samples, 36 Bulletin de Methodologie Sociologique
59 (1992)).
garnered from people who have a great deal in
common with each other, how well their findings
characterize a broader population of gay families
researchers exammmg same-sex parenting have
repeatedly selected small, non-representative,
homogeneous samples of privileged lesbian mothers
supra at
739; see also Walter R. Schumm, VVhat Was Really
Learned From Tasker & Golombok's (1995) Study of
Lesbian & Single Parent Mothers?, 95 Psych. Reports
000070
20
interpreting research on homosexual issues and be
wary of outcomes when samples are very small and
often nonrandom, so the null hypothesis is not
rejected but is used for political purposes as if a
research has likewise found that studies purporting
to show no difference between children raised by
same-sex couples and those raised by married
mothers and fathers share these significant
limitations. 7
If these studies were being employed to shed light
on the outcomes of children raised by highly educated
and affluent middle to upper class white women,
their conclusions would have merit. But the studies
ought not be generalized to the childhood and
adolescent experiences of the wide spectrum of gay
and lesbian parents, since gay and lesbian parents
are, in reality, economically, racially, and socially far
more diverse than those studies imply.
The issue is further complicated by the political
widespread support for same-sex marnage among
social and behavioral scientists, it is becoming
politically incorrect in academic circles even to
7 One of the most extensive critiques of the research was offered
by Professor Steven Lowell Nock of the University of Virginia.
Nock Aff., Halpern v. Attorney Gene1al of Canada, Case No.
684/00 (Ontario Sup. Ct. Justice 2001), available at
http://marriagelaw.cua.edu/Law/cases/Canadalontariolhalpernla
ff_nock.pdf. See also Glenn, supra at 2627; Schumm, supra at
423; Robert Lerner & Althea K. Nagai, No Basis: What the
Studies Don't Tell Us About SameSex Parenting (Marriage
Law Project, 2001).
000071
21
suggest that arguments being used in support of
supra at
25; see also Judith Stacey & Timothy Biblarz, (How)
Does the Sexual Orientation of Parents Matter?, 66
psychologists who are sympathetic to lesbigay
Given such limitations characteristic of a youthful
domain of inquiry, the vast majority of the studies
relied upon by the APA for its general claim that
there is no difference in outcomes of children raised
by gay and lesbian parents and those raised by
heterosexual parents are poorly poised to address the
broad propositions asserted in this case.
III. The Largest Population-Based Studies Do Not
About Child Outcomes Among Same-Sex
Parents.
Recent research using larger, randomly selected,
nationally representative samples suggests that
there are significant differences in the outcomes of
children raised by parents who have had a same-sex
relationship and children raised by intact biological
parents. This research, called the New Family
Structures Study (NFSS), was conducted on young
adults with a very large sample size of nearly 3,000
participants, which comprised a racially,
socioeconomically, and geographically diverse group
that reflects the diversity noted in demographic
mappings of the gay and lesbian population in
000072
22
America. Regnerus, How Different?, supra at 755,
757. The study surveyed adults aged 18-39 who
relationship behavior, which occurred as recently as
a few years ago or as far back as 30 or more years.s
Among that sample, 175 people reported living with a
mother who was (and may still be) in a samesex
romantic relationship, and 73 who had reported
living with a father who had been in a samesex
romantic relationship.
outcomes (as reported by the adult children in the
study rather than by those who raised them) among
various groups, including married biological parents,
stepparents, single parents, and parents who had
been in a same-sex romantic relationship, among
children who grew up in biologically (still) intact,
mother-father families, the children of women who
reported a samesex relationship look markedly
different on numerous outcomes, including many
that are obviously suboptimal (such as education,
Id. at 764. Specifically, some of the statistically
significant differences where adult children who
reported living in a household with their mother and
for mother in a lesbian relationship) fared worse than
8
them many who witnessed a failed heterosexual union.
000073
23
intact biological family) included:
cohabitation (9% of the IBF and 27% of the
MLRgroup),
receiving welfare while growing up (17% of the
IBF and 70% of the MLR group),
currently receiving public assistance (10% of
the IBNF and 49% of the MLR group),
current full-time employment status (49% of
the IBF and 17% of the MLR group),
current unemployment (8% of the IBF and
40% of the MLR group),
having an affair while married or cohabitating
(13% of the IBF and 38% of the MLR group),
having been touched sexually by a parent or
other adult caregiver (2% of the IBF and 26%
of the MLR group), and
having been forced to have sex against their
will (8% of the IBF and 27% of the MLR
group).
Mark Regnerus, Parental SameSex Relationships,
Family Instability, and Subsequent Life Outcomes
for Adult Children: Answering Critics of the New
Family Structures Study with Additional Analysis,
41 Soc. Sci. Res. 1367, 1372-74 (2012) [hereinafter
Parental Same-Sex Relationships]; see also Douglas
W. Allen, High School Graduation Rates Among
Children of Same-Sex Households at 4 (2012)
(unpublished manuscript, on file with Department of
Economics, Simon Fraser University, Vancouver,
Canada) (analyzing Canadian census data to find
that children raised by gay and lesbian parents are
000074
24
much less likely to graduate from high school
compared to children raised by a married mother and
father).
Because of the smaller sample size for fathers
who have had gay relationships, there were not as
many significant findings as compared to mothers
who have had lesbian relationships. However, adult
children of fathers who are or have been in a same-
raised by intact biological parents] to smoke, have
been arrested, pled guilty to non-minor offenses, and
How
Different?, supra
that the study is not poised to assess causation or
definitively answer political questions. Indeed, the
suboptimal outcomes may not be due to the sexual
orientation or sexual behavior of the parent. Rather,
the author simply asserts that the groups display
numerous, notable distinctions, the exact sources of
which would be difficult if not impossible to
adequately sequester.
When the NFSS-based study was released in
summer 2012, it initiated much heated discussion
about same-sex parenting, and encountered
widespread criticism and a level of scrutiny unusual
for a published sociological study based on
nationally-representative data. Regnerus, Parental
Same-Sex Relationships, supra at 1367. One of the
most frequent criticisms by supporters of same-sex
of stably intact biological parents with both adult
children whose mother or father left a heterosexual
000075
25
union for a same-sex one, and the rare scenarios in
which children were raised consistently and stably in
a same-sex household. !d.
stability is a key asset for households with children,
then it is sensible to use intact biological families in
Id. at 1368. Indeed,
part of the problem of nearly all previous studies is
that they seldom included a married biological family
control group. Id. at 1368-69. Second, the fact that
most of the same-sex households were at some point
unstable raises the question of whether stable same-
sex households were genuinely undercounted in the
study, or whether same-sex relationships were more
short-lived. Id. The last scenario is possible, if not
probable, given other research on the comparative
volatility oflesbian relationships.
A study of Norwegian and Swedish same-
sex marriages notes that divorce risk is
higher in same-sex marriages and that the
actually is more than twice that for male
risk of divorce as did more recent unions,
suggesting no notable variation in
instability over time as a function of new
law or pent-up demand among more stable,
longstanding relationships. The study
authors estimate that in Sweden, 30% of
female marriages are likely to end in
000076
26
divorce within 6 years of formation,
compared with 20% for male marriages and
13% for heterosexual ones.
Id. at 1370 (emphasis added) (quoting Gunnar
Anderson et al., The Demographics of SameSex
Marriages In Norway and Sweden, 43 Demography
79, 89 (2006)). Other studies show similar instability,
especially among lesbian couples. !d.
relationships appear more stable than lesbian
relationships, they are less likely to be monogamous.
Id. (citing Colleen Hoff & Sean Beougher, Sexual
Agreements Among Gay Male Couples, 39 Arch. Sex.
Beh. 774 (2010)).
An important, unanswered question then is
whether the NFSSbased study randomly
undercounted stable same-sex parenting
relationships, or whether its small number of such
stable relationships (a) was a product of an earlier
era exhibiting a poorer social climate for samesex
households, or (b) reflects possible greater instability
in same-sex parenting relationships, thus limiting
their easy location via random sampling. Whatever
the answer, and it is empirically unknown, what is
clear is that there remains much to be studied in this
study author indicated,
Perhaps in social reality there are really
heterosexual stably-coupled household and
but no population-based sample analysis is
000077
27
yet able to consistently confirm wide
evidence of the latter. Moreover, a stronger
burden of proof than has been employed to
date ought to characterize studies which
of longstanding reliance on nonrandom
samples of unknown bias and the high risk
of making [significant] errors in small-
sample studies. Simply put, the science
here is young. Until much larger random
samples can be drawn and evaluated, the
probability-based evidence that exists
.suggests . that the biologically-intact two-
parent household remains an optimal
setting for long-term flourishing of
children.
!d. at 1377 (citations omitted); see also Walter R.
Schumm, Methodological Decisions and the
Evaluation of Possible Effects of Different Family
Structures on Ch1ldren: The New Famlly Structures
Survey, 41 Soc. Sci. Research 1357-66 (2012)
(validating methodological decisions made in New
Family Structures Study, and noting similar
decisions in other large-scale surveys).
Other population-based studies have similarly
identified better outcomes for children raised by a
biological mother and father than other parenting
structures. In his assessment of group differences in
academic progress through school, Rosenfeld noted
no differences in school progress for children raised
by same-sex parents. Michael J. Rosenfeld,
Nontraditional Famllies and Childhood Progress
Through School, 47 Demography 755 (2010).
000078
28
However, a reanalysis of his high-quality, Census-
couples, not just those who were residentially stable
raised by same-sex couples are 35% less likely to
Allen et al., supra
strikingly different from those of the original
conclusion may be a result of dropping more unstable
households from his analytic sample. While the
Census is optimal for a comparison of samesex and
opposite-sex couples, it is not poised to assess the
households of gay or lesbian single parents, since the
Census does not ask questions about sexual
orientation.
Indeed, no existing study yet bears the ability to
randomly compare large numbers of children raised
by gay couples with the same among heterosexual
couples over a long period of time. The social science
of same-sex parenting structures remains young, and
subject to significant limitations about what can be
known, given that the influence of household
structures and experiences on child outcomes is not a
topic for experimental research design. But those
analyses that employ large, population-based
samples continue to document differences, in contrast
to contrary scholarly claims. With so many
significant outstanding questions about whether
children develop as well in same-sex households as in
opposite-sex households, it remains prudent for
government to continue to recognize marriage as a
union of a man and a woman, thereby promoting
000079
29
what is known to be an ideal environment for raising
children.
CONCLUSION
Marriage is the legal means by which children
are stably united with their biological mothers and
fathers and poised for optimal development.
Opposite-sex parenting allows children to benefit
from distinctive maternal and paternal contributions.
Given these facts, safeguarding marriage is a liberty
to be accorded to children at least as much as to their
parents.
Thus, Amici respectfully request that the Court
reverse the Ninth Circuit and the Second Circuit
decisions.
Respectfully submitted,
Abram J. Pafford
Counsel of Record
PAFFORD LAWRENCE & CHILDRESS PLLC
1776 I Street N.W., Suite 900
Washington, DC 20006
(202) 756-4886
apafford@pafflaw .com
January 29, 2013
000080





TAB 14




NO. 12-144


IN THE
SUPREME COURT OF THE UNITED STATES


DENNIS HOLLINGSWORTH, et al.,
Petitioners,
v.

KRISTIN M. PERRY, et al.,
Respondents.


On Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit


AMICI CURIAE BRIEF OF SCHOLARS OF
HISTORY AND RELATED DISCIPLINES IN
SUPPORT OF PETITIONERS




WILLIAM C. DUNCAN
Counsel of Record
MARRIAGE LAW FOUNDATION
1868 N 800 E
Lehi, UT 84043
801-367-4570
duncanw@marriagelawfoundation.org
Counsel for Amici Curiae
000081
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................... iii
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF THE ARGUMENT ........................... 3
ARGUMENT .............................................................. 5
I. THE HISTORY AND TRADITION OF
MARRIAGE CONSTRAIN THE COURTS
ANALYSIS UNDER THE FOURTEENTH
AMENDMENT. ................................................... 5
II. IN RETAINING THE DEFINITION OF
MARRIAGE SHARED THROUGHOUT
HISTORY, THE PEOPLE OF
CALIFORNIA WERE ACTING
REASONABLY TO ADVANCE THE
INTERESTS MARRIAGE HAS ALWAYS
SERVED. ............................................................ 10
A. Reflecting Biological and Social
Realities, Marriage Has Universally
Been Understood To Be the Union of a
Man and a Woman and to Serve,
Among Other Purposes, Interests
Related to Procreation. ............................... 11
B. The Marriage Laws of the United
States and their Close Antecedents
Have Consistently Recognized the
Realities Underlying the Universality
of the Marriage Institution. ........................ 15

000082
ii
III. HISTORICAL EVIDENCE MAKES
CLEAR THAT ATTEMPTS TO
DOWNPLAY THE SIGNIFICANCE OF
THE STATE INTERESTS IN MARRIAGE
RELATED TO PROCREATION ARE
MISGUIDED. ..................................................... 25
A. The District Courts Portrayal of the
Historical Evidence Was Deeply
Flawed. ........................................................ 25
B. Common Objections to Social Interests
in Marriage Related to Procreation are
Similarly Flawed. ........................................ 30
CONCLUSION ......................................................... 37



000083
iii
TABLE OF AUTHORITIES
Constitutional Provisions
CAL. CONST. art. XI, 14 (1849) .............................. 29
Statutes
2012 Me. Legis. Serv. Ch. 1 (I.B. 3) (L.D. 1860) ....... 8
Cases
Adams v. Howerton, 486 F.Supp. 1119 (C.D. Cal.
1980) ...................................................................... 31
Andersen v. King County, 138 P.3d 963 (Wash. 2006)
............................................................................... 24
Baker v. Baker, 13 Cal. 87 (1859) ............................ 22
Baker v. Nelson, 409 U.S. 810 (1972) ...................... 27
Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007) ..... 9
Collins v. City of Harker Heights, 503 U.S. 115
(1992) ...................................................................... 6
Conaway v. Deane, 932 A.2d 571 (Md. 2007) .... 24, 34
County of Sacramento v. Lewis, 523 U.S. 833 (1998) 6
Daniels v. Williams, 474 U.S. 327 (1986) .................. 6
DeBurgh v. DeBurgh, 250 P.2d 598 (Cal. 1952) ...... 23
Engquist v. Oregon Dept of Agric., 553 U.S. 591
(2008) ...................................................................... 6
Gard v. Gard, 169 N.W. 908 (Mich. 1918)............... 23
Goodridge v. Department of Public Health, 798
N.E.2d 941 (Mass. 2003) ...................................... 31
Goodridge v. Department of Public Health, 798
N.E.2d 941 (Mass. 2003) .................................. 8, 35
Griswold v. Connecticut, 381 U.S. 479 (1965) ........... 7
Grover v. Zook, 87 P. 638 (Wash. 1906) ................... 23
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) 11, 33
Heup v. Heup, 172 N.W.2d 334 (Wis. 1969) ............ 23
Hurtado v. California, 110 U.S. 516 (1884) .............. 6
In re Marriage of Ramirez, 81 Cal Rptr. 3d 180 (Cal.
Ct. App. 2008) ....................................................... 23

000084
iv
Lawrence v. Texas, 539 U.S. 558 (2003) .................... 6
Lewis v. Harris, 908 A.2d 196 (N.J. 2006) ................ 8
Loving v. Virginia, 388 U.S. 1 (1967) ...................... 23
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ........................ 6
Maynard v. Hill, 125 U.S. 190 (1888) ............... 22, 24
Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005)
............................................................................... 31
Murphy v. Ramsey, 114 U.S. 15 (1885) ................... 22
Parents Involved in Community Schools v. Seattle
School Dist. No. 1, 551 U.S. 701 (2007). ................ 6
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D.
Cal. 2010) .............................................26, 27, 28, 30
Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975) .......... 23
Skinner v. Oklahoma, 316 U.S. 535 (1942) ............. 24
Standhardt v. Superior Court, 77 P.3d 451 (Ariz.
App. 2003) ............................................................. 31
Stegienko v. Stegienko, 295 N.W. 252 (Mich. 1940) 23
United States v. Virginia, 518 U.S. 515 (1996) ......... 6
Washington v. Glucksberg, 521 U.S. 702 (1997) ....... 6
Wendel v. Wendel, 30 A.D. 447 (N.Y. App. 1898) .... 30
Zoglio v. Zoglio, 157 A.2d 627 (D.C. App. 1960) ..... 23
Other Authorities
ANTHROPOLOGICAL INSTITUTE OF GREAT BRITAIN,
NOTES AND QUERIES ON ANTHROPOLOGY (6th ed.
1951) ...................................................................... 13
BERTRAND RUSSELL, MARRIAGE AND MORALS (1929) 13
BRONISLAW MALINOWSKI, SEX, CULTURE AND MYTH
(1962) .................................................................... 13
Bronislaw Malinowski, What Is a Family? in
MARRIAGE, PAST AND PRESENT: A DEBATE BETWEEN
ROBERT BRIFFAULT AND BRONISLAW MALINOWSKI
(M. F. Ashley Montagu, ed., 1956) ......................... 9
C. Owen Lovejoy, The Origin of Man 211 SCIENCE
341 (Jan. 23, 1981) ............................................... 15

000085
v
C.E. Bosworth, Zawdj in THE ENCYCLOPEDIA OF
ISLAM vol. 11 (P.J. Bearman, et al., editors, 2d
edition 2002) ........................................................... 9
Charles J. Reid, Marriage in Its Procreative
Dimension: The Meaning of the Institution of
Marriage Throughout the Ages 6 U. ST. THOMAS L.
J. 454 (2009) .......................................................... 17
Claude Lvi-Strauss, Introduction in A HISTORY OF
THE FAMILY: DISTANT WORLDS, ANCIENT WORLDS
(vol. 1, Andre Burguiere, et al., eds. 1996) .......... 11
CLAUDE LVI-STRAUSS, THE VIEW FROM AFAR (1985)
............................................................................... 13
DAVID HUME, AN ENQUIRY CONCERNING THE
PRINCIPLES OF MORALS (1751) .............................. 20
EDWARD WESTERMARCK, THE FUTURE OF MARRIAGE
IN WESTERN CIVILIZATION (1936) .......................... 14
FRANK H. KEEZER, A TREATISE ON THE LAW OF
MARRIAGE AND DIVORCE (1923) ............................ 22
G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS
(1988) .................................................................... 13
GEORG SIMMEL, THE SOCIOLOGY OF GEORG SIMMEL
(Kurt H. Wolff, ed. 1950) ...................................... 12
Haishan Fu, et al., Contraceptive Failure Rates: New
Estimates from the 1995 National Survey of
Family Growth 31 FAMILY PLANNING
PERSPECTIVES 55 (1999) ....................................... 32
HENRI DE BRACTON, 2 ON THE LAWS AND CUSTOMS OF
ENGLAND (Samuel E. Thorne, transl. 1968). . 17, 18
Irving G. Tragen, Statutory Prohibitions Against
Interracial Marriage, 32 CAL. L. REV. 269 (1944) 26
JAMES DALRYMPLE, VISCOUNT STAIR, 1 THE
INSTITUTIONS OF THE LAW OF SCOTLAND (1681) ... 20
JAMES KENT, 2 COMMENTARIES ON AMERICAN LAW
(3d ed. 1838) .......................................................... 21
JAMES Q. WILSON, THE MARRIAGE PROBLEM (2003) 13

000086
vi
JAMES SCHOULER, LAW OF THE DOMESTIC RELATIONS
(1905) .............................................................. 21, 29
James Trosino, Note, American Wedding: Same-Sex
Marriage and the Miscegenation Analogy 73 B.U.
L. REV. 93 (1993) ................................................... 27
James Trussel & Barbara Vaughn, Contraceptive
Failure, Method-Related Discontinuation and
Resumption of Use: Results from the 1995 National
Survey of Family Growth 31 FAMILY PLANNING
PERSPECTIVES 64 (1999) ....................................... 32
Jill Elaine Hasday, Federalism and the Family
Reconstructed 45 UCLA L. REV. 1297 (1998)....... 26
JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW
OF MARRIAGE & DIVORCE (1
st
ed. 1852) .... 21, 26, 29
JOHN BOUVIER, 1 INSTITUTES OF AMERICAN LAW
(1851) .................................................................... 21
JOHN LOCKE, SECOND TREATISE OF CIVIL
GOVERNMENT (1690) ............................................. 19
JOHN WITTE JR., FROM SACRAMENT TO CONTRACT:
MARRIAGE, RELIGION, AND LAW IN THE WESTERN
TRADITION (2d ed. 2012) ................................. 15, 19
John Witte, Jr., Propter Honoris Respectum: The
Goods and Goals of Marriage 76 NOTRE DAME L.
REV. 1019 (2001) ................................................... 34
JOSEPH STORY, COMMENTARIES ON THE CONFLICTS OF
LAWS (1834)..................................................... 21, 28
Joyce C. Abma, et al., Fertility, Family Planning,
and Womens Health: New Data from the 1995
National Survey of Family Growth 23 VITAL
HEALTH STATISTICS 28 (1997) ............................... 32
Kingsley Davis, The Meaning & Significance of
Marriage in Contemporary Society in
CONTEMPORARY MARRIAGE: PERSPECTIVES ON A
CHANGING INSTITUTION (Kingsley Davis, ed. 1985)
............................................................................... 12

000087
vii
Laurence Drew Borten, Sex, Procreation, and the
State Interest in Marriage 102 COLUM. L. REV.
1089 (2002) ............................................................ 35
Lynn Wardle & Lincoln C. Oliphant, In Praise of
Loving: Reflections on the Loving Analogy for
Same-Sex Marriage, 51 HOW. L.J. 117 (2007) ..... 27
Musonius Rufus, Fragment 13A, What is the Chief
End of Marriage? in MUSONIUS RUFUS: THE ROMAN
SOCRATES (Cora E. Lutz, ed. & trans. 1947)........ 17
N.M. Atty Gen. Advisory Letter from Attorney
General Patricia A. Madrid to State Senator
Timothy Z. Jennings (Feb. 20, 2004) ..................... 9
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE
ENGLISH LANGUAGE (1
st
ed. 1828) ........................ 20
Peter Wallenstein, Race, Marriage, and the Law of
Freedom: Alabama and Virginia, 1860s-1960s 70
CHI.-KENT L. REV. 371 (1994) ............................... 26
Robert Kovach, Note, Miscegenation Statutes and the
Fourteenth Amendment 1 CASE W. RES. L. REV. 89
(1949) .................................................................... 26
Ronald S. Immerman & Wade C. Mackey,
Perspectives on Human Attachment (Pair
Bonding): Eves Unique Legacy of a Canine
Analogue 1 EVOLUTIONARY PSYCHOLOGY 138 (2003)
............................................................................... 14
SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (1755) .................................................. 20
Stanley K. Henshaw, Unintended Pregnancies in the
United States 30 FAMILY PLANNING PERSPECTIVES
24 (1998)................................................................ 32
W. BRADFORD WILCOX, ET AL., WHY MARRIAGE
MATTERS (2d ed. 2005) .......................................... 11
WILLIAM BLACKSTONE, 1 COMMENTARIES ON THE
LAWS OF ENGLAND (1765) ............................... 18, 29


000088
000089
1
INTEREST OF AMICI CURIAE
1

The work of amici entails decades of scholarly
engagement in the humanities and social sciences
including history, law, and matters of civil society.
They believe the historical context provided by this
brief will assist this Court in addressing the claim
that the U.S. Constitution mandates a redefinition of
marriage. The names of amici (with affiliations
noted for identification purposes only) follow.

Douglas Ambrose, Ph.D., is Professor of History at
Hamilton College.

Herman Belz, Ph.D., is Professor Emeritus of
History at the University of Maryland.

Robert D. Benne, Ph.D., is Jordan-Trexler Professor
Emeritus and Research Associate at Roanoke
College.

Allan C. Carlson, Ph.D., is Distinguished Visiting
Professor of History at Hillsdale College.

G.M. Curtis, Ph.D., is Professor of American History
at Hanover College.

1
Letters consenting to the filing of all amici curiae briefs have
been submitted by the parties. Amici curiae also represents
that no counsel for a party authored this brief in whole or in
part, that no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief,
and that no person other than amici curiae, its members, or its
counsel made a monetary contribution to the preparation or
submission of this brief.


000090
2
Michael O. Emerson, Ph.D., is Allyn & Glady Cline
Professor of Sociology at Rice University.

Dr. Timothy George, Th.D., is Founding Dean and
Professor of Divinity Beeson Divinity School at
Samford University.

Harold James, Ph.D., is Professor of History and
International Affairs, Claude and Lore Kelly
Professor in European Studies and the Director of
the Program in Contemporary European Politics and
Society at Princeton University.

Steven Justice, Ph.D., is Professor of English at the
University of California at Berkeley.

Robert C. Koons, Ph.D., is Professor of Philosophy at
the University of Texas at Austin.

Stanley Kurtz, Ph.D. (anthropology), is Senior
Fellow at the Ethics and Public Policy Center.

Gerald R. McDermott, Ph.D., is Jordan-Trexler
Professor of Religion at Roanoke College.

Russell Moore, Ph.D., is Provost and Dean of the
School of Theology at Southern Baptist Theological
Seminary.

Robert Paquette, Ph.D., is a Professor of History and
Co-Founder of the Alexander Hamilton Institute.

Paul A. Rahe, Ph.D., is Professor of History at
Hillsdale College.


000091
3
Michael A. Reynolds, Ph.D., is Associate Professor in
Near Eastern Studies at Princeton University.

Robert Louis Wilken, Ph.D., is William R. Kenan,
Jr., Professor of the History of Christianity Emeritus
at the University of Virginia.

Christopher Wolfe, Ph.D., is Emeritus Professor of
Political Science at Marquette University.

Peter W. Wood, Ph.D., is president of the National
Association of Scholars and former Associate
Professor of Anthropology at Boston University.


SUMMARY OF THE ARGUMENT
Respondents claim that marriage should be
redefined to include same-sex couples finds no
support in our Nations history, traditions, or
practices. Before 2003, same-sex marriage had
never existed in the United States and it still is
comparatively rare. Indeed, before 2000 it had never
existed in human history. That fact is highly
relevant to this Courts equal protection analysis,
which cannot be conducted in an historical vacuum.

This brief demonstrates that the male-female
definition of marriage enshrined in Proposition 8 is
consistent with the universal understanding of
marriage throughout history and across cultures.
While the procedures and incidents of marriage have
varied over time and across cultures, its primary
form and legal meaning have remained remarkably
constant. The traditional definition of marriage

000092
4
centers on the communitys profound interest in
encouraging potentially reproductive relationships
between men and women to take place within
marriage so that children can be known, loved, and
reared by the mothers and fathers who brought them
into the world.

Marriage as an opposite-sex institution is a
universal phenomenon. It has, from the earliest
historical epoch, served child-centered purposes.
This linking of marriages male-female nature to
childrens needs has deep biological and sociological
roots, extending perhaps to pre-historic
developments.

Specially, the Western cultures that influenced
American law treated the male-female component of
marriage as a core element of its legal recognition.
They understood that doing so was an important
way to regulate procreation in the interest of
children.

Following that tradition, American law has
always recognized marriage as the union of a
husband and wife. Courts and prominent legal
commentators have remarked on the importance of
this aspect of marriage and its powerful links to
interests in procreation.

The district court attempted to discredit the
historical record by pointing to atypical instances
such as anti-miscegenation laws and the doctrine of
coverture. These types of laws were not understood
to be central to the meaning of marriage and have

000093
5
not enjoyed the unanimous acceptance accorded the
opposite-sex requirement.

The courts below also downplayed the
significance of the remarkable unanimity in the
treatment of marriage by highlighting the fact that
some married couples do not have children. This is
hardly a reason for redefining marriage. It would be
difficult and unconstitutionally intrusive to conduct
pre-marriage inquisitions into who may or may not
have children. Moreover, married couples who
cannot bear their own children often adopt, thereby
furthering as far as possible adoptive childrens
interest in having mothers and fathers. Infertile
marital unions also reinforce the social norm that
male-female sexuality should be expressed within
marriage.

California voters have acted rationally and in
harmony with this Nationsand indeed the
worldstraditions and collective wisdom in
retaining the universal, child-centered
understanding of marriage.

ARGUMENT
I. THE HISTORY AND TRADITION OF
MARRIAGE CONSTRAIN THE COURTS
ANALYSIS UNDER THE FOURTEENTH
AMENDMENT.

Every claim under the Fourteenth Amendment
equal protection and substantive due process clauses
requires the Court to account for history and

000094
6
tradition. While our Nations history, legal
traditions, and practices,
2
are typically associated
with substantive due process analysis, these
considerations are nevertheless relevant to
respondents equal protection arguments because
[e]quality of treatment and the due process right to
demand respect for conduct protected by the
substantive guarantee of liberty are linked
3
by their
common concern with protection from arbitrary
laws.
4
History and tradition may not be the ending
point of constitutional analysis,
5
but in a case like
this they are surely the place to begin, for even in
equal protection cases history will be heard.
6
This
2
Washington v. Glucksberg, 521 U.S. 702, 710 (1997)
3
Lawrence v. Texas, 539 U.S. 558, 575 (2003).
4
See also M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996) (noting
that the Courts decisions concerning access to judicial
processes [in areas involving sensitive family choices] ... reflect
both equal protection and due process concerns); compare
Collins v. City of Harker Heights, 503 U.S. 115, 127 n.10 (1992)
(the Due Process Clause, like its forbear in the Magna Carta ...
was intended to secure the individual from the arbitrary
exercise of the powers of government ....) (quoting Hurtado v.
California, 110 U.S. 516, 527 (1884)), quoted in Daniels v.
Williams, 474 U.S. 327, 331 (1986) (emphasis added) with
Engquist v. Oregon Dept of Agric., 553 U.S. 591, 598 (2008)
(citing the traditional view of the core concern of the Equal
Protection Clause as a shield against arbitrary classifications)
(emphasis added).
5
County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998)
(Kennedy, J., concurring).
6
Parents Involved in Community Schools v. Seattle School Dist.
No. 1, 551 U.S. 701, 746 (2007). See, e.g., id. at 735 (looking to
[the Courts] precedents and our Nations history of using race
in public schools to decide whether assigning children to public
schools based on their race violates equal protection); United
States v. Virginia, 518 U.S. 515, 531 (1996) ([S]keptical


000095
7
is especially true here since respondents continue to
base their challenge to Proposition 8 on overlapping
equal protection and substantive due process
grounds. See Br. Opp. Perry Respondents at 31.

It is highly relevant, therefore, whether or not
the objective character of [Californias limitation of
the term marriage to opposite-sex couples] is
consistent with our traditions, precedents, and
historical understanding of the Constitution and its
meaningan inquiry that binds the Court to
objective considerations, including history and
precedent, [as] the controlling principle.
7
As with
all cases touching on socially important issues where
the Constitutions terms provide no express
direction, this Court should be guided by respect for
the teachings of history, solid recognition of the basic
values that underlie our society, and wise
appreciation of the great roles that the doctrines of
federalism and separation of powers have played in
establishing and preserving American freedoms.
8


scrutiny of official action denying rights or opportunities based
on sex responds to volumes of history.).
7
County of Sacramento, 523 U.S. at 857-58 (Kennedy, J.,
concurring). Accord Glucksberg, 521 U.S. at 767 (Souter, J.,
concurring in the judgment) ([A] court is bound to confine the
values that it recognizes to those truly deserving constitutional
stature, either to those expressed in constitutional text, or
those exemplified by the traditions from which [the Nation]
developed, or revealed by contrast with the traditions from
which it broke.) (quoting Poe v. Ullman, 367 U.S. 497, 542
(1961) (Harlan, J., dissenting)).
8
Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J.,
concurring in the judgment).


000096
8
These considerations utterly belie respondents
asserted right to same-sex marriage. Quite simply,
as demonstrated in greater depth below, this Nation
lacks anything resembling a deeply rooted history,
legal tradition, or practice of gay marriage. Indeed,
before 2003 when the Massachusetts Supreme
Judicial Court mandated same-sex marriage in that
State,
9
same-sex marriage had never existed in this
Nation. Since 2003, every State but twoNew
Mexico and Rhode Islandhas directly considered
whether to redefine marriage. A majority of 39
States have expressly rejected same-sex marriage,
with 30 embodying their opposition in
democratically-enacted constitutional amendments
like Proposition 8.
10
More broadly, throughout world
9
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass.
2003).
10
States rejecting same-sex marriage through a constitutional
amendment or statute include Alabama, Alaska, Arizona,
Arkansas, California, Colorado, Delaware, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana,
Michigan, Minnesota, Mississippi, Missouri, Montana,
Nebraska, New Jersey, Nevada, North Carolina, North Dakota,
Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South
Dakota, Tennessee, Texas, Utah, Virginia, West Virginia,
Wisconsin, and Wyoming. See Brief of Amici Curiae National
Assn of Evangelicals, et al., Hollingsworth v. Perry, No. 12-144,
at 1a-13a (Aug. 31, 2012) (containing a verbatim transcription
of State provisions defining marriage in traditional opposite-
sex terms). Since this appendix was prepared, Maine changed
its policy in the November 2012 election and now recognizes
same-sex marriage. See 2012 Me. Legis. Serv. Ch. 1 (I.B. 3)
(L.D. 1860) (West) (An Act to Allow Marriage Licenses for
Same-Sex Couples and Protect Religious Freedom). Even in
New Mexico, New Jersey and Rhode Island, the marriage laws
have (unsurprisingly) been interpreted to reflect the opposite-
sex nature of marriage. See Lewis v. Harris, 908 A.2d 196, 208
(N.J. 2006); N.M. Atty Gen. Advisory Letter from Attorney


000097
9
historyregardless of politics, culture, or religion
marriage has always been defined as the union of
man and woman oriented toward the bearing and
rearing of children.
11
By contrast, same-sex
marriage is an historically rare anomaly that has
existed for merely a dozen years. Thus, retaining
the age-old definition of marriage, as Proposition 8
does, cannot be deemed unreasonable or arbitrary
under the Fourteenth Amendment. To hold
otherwise would drain the notions of
General Patricia A. Madrid to State Senator Timothy Z.
Jennings (Feb. 20, 2004); Chambers v. Ormiston, 935 A.2d 956,
962-65 (R.I. 2007).
11
At the outset, it is important to note that the existence of
polygamy does not undercut this reality since even polygamous
marriages were opposite-sex, not the unions of three men or
three women or numbers of men and women all being married
to one another. Polygamy still involves the union of a man and
a woman even if it also allows for more than one of these
unions to take place for a particular man at a given time. As
anthropologist Bronislaw Malinowski explains, polygamy . . .
implies the existence of individual marriage. . . . a legal
contract between one man and one woman, guaranteeing to
each mutual rights and obligations, and guaranteeing to the
children a legal status. Polygamy, on such a definition of
marriage, is a series of individual contracts. Bronislaw
Malinowski, What Is a Family? in MARRIAGE, PAST AND
PRESENT: A DEBATE BETWEEN ROBERT BRIFFAULT AND
BRONISLAW MALINOWSKI 42 (M. F. Ashley Montagu, ed., 1956).
The example of Islam is instructive. The Quran, despite
sanctioning polygamy under certain conditions, repeatedly
employs in the sense of spouse the word zawdj, a word that
originally denoted two animals yoked together, and uses the
cognate zawdjayn to mean a pair composed of a man and a
woman. C.E. Bosworth, Zawdj in THE ENCYCLOPEDIA OF
ISLAM vol. 11 at 464-465 (P.J. Bearman, et al., editors, 2d
edition 2002).


000098
10
reasonableness and arbitrariness from the very
context that gives them meaning.

II. IN RETAINING THE DEFINITION OF
MARRIAGE SHARED THROUGHOUT
HISTORY, THE PEOPLE OF CALIFORNIA
WERE ACTING REASONABLY TO ADVANCE
THE INTERESTS MARRIAGE HAS ALWAYS
SERVED.
When the people of California approved
Proposition 8, amending their state constitution to
retain the definition of marriage that had prevailed
in the state from its earliest existence until a few
months before the vote, they reaffirmed an
understanding of marriage consistently accepted
across nearly all cultures throughout recorded
history. Such remarkable consensus can be at least
partially explained by the need for societies to
advance important child-centered interests by
encouraging the potentially procreative relationships
of men and women to take place in a setting where
the children who may result have the opportunity to
know and be reared by a mother and father firmly
bound to one another and to any children their union
produces.


000099
11
A. Reflecting Biological and Social
Realities, Marriage Has Universally Been
Understood To Be the Union of a Man
and a Woman and to Serve, Among Other
Purposes, Interests Related to
Procreation.
Marriage, as the union of opposite-sex couples, is
widely understood to be as close to a universal
institution as any institution can be. The New York
Court of Appeals recognized: Until a few decades
ago, it was an accepted truth for almost everyone
who ever lived, in any society in which marriage
existed, that there could be marriages only between
participants of different sex.
12


The universality of marriage is related to basic
realities of sex difference and the related procreative
capacity of male-female couplings. As the
distinguished anthropologist Claude Lvi-Strauss
explained: marriage is a social institution with a
biological foundation.
13


A group of respected family scholars explains:
As a virtually universal human idea, marriage is
about regulating the reproduction of children,
families and society.
14
Marriage has, of course,
served a variety of purposes across a variety of
cultures and times, but this one purpose has been
12
Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006).
13
Claude Lvi-Strauss, Introduction in A HISTORY OF THE
FAMILY: DISTANT WORLDS, ANCIENT WORLDS 5 (vol. 1, Andre
Burguiere, et al., eds. 1996).
14
W. BRADFORD WILCOX, ET AL., WHY MARRIAGE MATTERS 15
(2d ed. 2005).


000100
12
consistent. As Georg Simmel, an early sociologist,
explained: The peculiar combination of subjective
and objective, personal and super-personal or
general elements in marriage is involved in the very
process that forms its basisphysiological pairing. It
alone is common to all historically known forms of
marriage, while perhaps no other characteristic can
be found without exceptions.
15


This ubiquitous recognition of marriage is not
arbitrary, much less a multicultural, multi-
millennial conspiracy to exclude identified groups.
Rather, it is an acknowledgment that marriage
should serve purposes directly connected to the
nature of the relationship. Specifically, marriage has
been universally recognized as a way to encourage
those who are responsible for creating a child, a
mother and father, to take responsibility for the
child that their union alone may produce. A
prominent sociologist explains: [t]he genius of the
family system is that, through it, the society
normally holds the biological parents responsible for
each other and for their offspring. By identifying
children with their parents . . . the social system
powerfully motivates individuals to settle into a
sexual union and take care of the ensuing
offspring.
16
Another concurs: Marriage is a socially
arranged solution for the problem of getting people
to stay together and care for children that the mere
15
GEORG SIMMEL, THE SOCIOLOGY OF GEORG SIMMEL 131 (Kurt
H. Wolff, ed. 1950).
16
Kingsley Davis, The Meaning & Significance of Marriage in
Contemporary Society in CONTEMPORARY MARRIAGE:
PERSPECTIVES ON A CHANGING INSTITUTION 7-8 (Kingsley Davis,
ed. 1985).


000101
13
desire for children, and the sex that makes children
possible, does not solve.
17


This reality has been widely remarked upon.
Lvi-Strauss noted: [T]he familybased on a union,
more or less durable, but socially approved, of two
individuals of opposite sexes who establish a
household and bear and raise childrenappears to
be a practically universal phenomenon, present in
every type of society.
18
Another historian noted:
Marriage, as the socially recognized linking of a
specific man to a specific woman and her offspring,
can be found in all societies.
19
Philosopher Bertrand
Russell argued that, But for children, there would
be no need for any institution concerned with sex. . .
. [I]t is through children alone that sexual relations
become of importance to society.
20
Eminent
anthropologist Bronislaw Malinowski said the
institution of marriage is primarily determined by
the needs of the offspring, by the dependence of the
children upon their parents.
21
The Anthropological
Institute of Great Britain defined marriage as a
union between a man and a woman such that
children borne by the woman are recognized as the
legitimate offspring of both partners.
22


There is reason to believe that the origin of
marriage as a social institution is rooted deeply in
17
JAMES Q. WILSON, THE MARRIAGE PROBLEM 41 (2003).
18
CLAUDE LVI-STRAUSS, THE VIEW FROM AFAR 40-41 (1985).
19
G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 2 (1988).
20
BERTRAND RUSSELL, MARRIAGE AND MORALS 77, 156 (1929).
21
BRONISLAW MALINOWSKI, SEX, CULTURE AND MYTH 11 (1962).
22
ANTHROPOLOGICAL INSTITUTE OF GREAT BRITAIN, NOTES AND
QUERIES ON ANTHROPOLOGY 71 (6th ed. 1951).


000102
14
biology. In 1936, sociologist Edward Westermarck
said marriage has a deep biological foundation that
most probably developed out of a primeval habit:
that even in primitive times it was the habit of a
man and a woman, or several women, to live
together, to have sexual relations with each other,
and to rear their offspring in common, the man being
the guardian of the family and the woman his
helpmate and the nurse of their children. This habit
was sanctioned by custom, and afterwards by law,
and thus transformed into a social institution.
23


More recently, authors of an article in
Evolutionary Psychology conclude: Across cultures,
men develop extended pair-bonds with women (they
marry women) and provision these women. The men
also nurture their own children. Within the context
of these two universals, the argument is presented
that the affiliation which mediates these behaviors
is, in part, neuro-hormonal in character and thus
part of the phylogenetic heritage of our species.
24

Dr. C. Owen Lovejoy proposes a model whereby
advanced material culture and the Pleistocene
acceleration in brain development are sequelae to an
already established hominid character system, which
included intensified parenting and social
relationships, monogamous pair binding, specialized
sexual-reproductive behavior, and bipedality. It
implies that the nuclear family and human sexual
23
EDWARD WESTERMARCK, THE FUTURE OF MARRIAGE IN
WESTERN CIVILIZATION 5 (1936).
24
Ronald S. Immerman & Wade C. Mackey, Perspectives on
Human Attachment (Pair Bonding): Eves Unique Legacy of a
Canine Analogue 1 EVOLUTIONARY PSYCHOLOGY 138, 146
(2003).


000103
15
behavior may have their ultimate origin long before
the dawn of the Pleistocene.
25


Whatever the precise origin and contours of the
marriage relationship over time and across societies,
it is clear that this social institution is rooted in deep
realities and oriented towards a purpose uniquely
tied to its nature as the union of the sexesa pairing
that alone may naturally create a child and provide
that child with a social context that accounts for his
or her biological origins.

B. The Marriage Laws of the United
States and their Close Antecedents Have
Consistently Recognized the Realities
Underlying the Universality of the
Marriage Institution.
The western legal tradition that contributed
most directly to the legal system of the United States
has, of course, followed the same pattern of
recognizing marriage as solely the union of a
husband and wife with a core purpose of advancing
procreative interests. Legal historian John Witte
explains: The western tradition inherited from
ancient Greece and Rome the idea that marriage is a
union of a single man and a single woman who unite
for the purposes of mutual love and friendship and
mutual procreation and nurture of children.
26


25
C. Owen Lovejoy, The Origin of Man 211 SCIENCE 341, 348
(Jan. 23, 1981).
26
JOHN WITTE JR., FROM SACRAMENT TO CONTRACT: MARRIAGE,
RELIGION, AND LAW IN THE WESTERN TRADITION 17 (2d ed.
2012).


000104
16
Greek society could be very tolerant of
homosexual conduct, but its thinkers nevertheless
understood marriage as the union of husband and
wife for the purpose of bearing and rearing children.
Professor Witte explains that [a]lready in the
centuries before Christ, classical Greek philosophers
treated marriage as a natural and necessary
institution designed to foster mutual love, support,
and friendship of husband and wife, and to produce
legitimate children who would carry on the family
name and property.
27


The Roman Stoic philosopher Musonius Rufus,
writing in 30 A.D., extolled marital procreation as
flowing out of and intrinsically part of the rich
companionate relationship that should prevail
between husband and wife:

The husband and wife ... should come
together for the purpose of making a
life in common and of procreating
children, and furthermore of regarding
all things in common between them,
and nothing peculiar or private to one
or the other, not even their own bodies.
The birth of a human being which
results from such a union is to be sure
something marvelous, but it is not yet
enough for the relation of husband and
wife, inasmuch as quite apart from
marriage it could result from any other
sexual union, just as in the case of
animals. But in marriage there must be
27
Id. at 3.


000105
17
above all perfect companionship and
mutual love of husband and wife, both
in health and in sickness and under all
conditions, since it was with this desire
as well as for having children that both
entered upon marriage.
28


In pre-Christian Roman law there were steady
efforts by lawmakers to provide institutional support
for marriage and to recognize marriage as the means
by which the next generation should come into being
and be trained to accept its responsibilities.
29


Following this same pattern, in the early
medieval west of the sixth through eleventh
centuries, the High Middle Ages of the twelfth
through fifteenth centuries, and the Anglican high
church and theological culture of the early modern
period . . . the procreative dimension of marriage
was, in each of these societies, the central organizing
principle of legal analysis and social life.
30
In his
13
th
Century treatise which formed the introduction
to case law for jurists that would follow, Henri de
Bracton noted the law which men of all nations use
. . . the union of man and woman, entered into by the
mutual consent of both, which is called marriage.
31

28
Musonius Rufus, Fragment 13A, What is the Chief End of
Marriage? in MUSONIUS RUFUS: THE ROMAN SOCRATES 89 (Cora
E. Lutz, ed. & trans. 1947).
29
Charles J. Reid, Marriage in Its Procreative Dimension: The
Meaning of the Institution of Marriage Throughout the Ages 6
U. ST. THOMAS L. J. 454, 455 (2009).
30
Id.
31
HENRI DE BRACTON, 2 ON THE LAWS AND CUSTOMS OF
ENGLAND 27 (Samuel E. Thorne, transl. 1968).


000106
18
Of it, he says: From that same law there also comes
the procreation and raising of children.
32


In his influential treatise, William Blackstone
listed marriage among the great relations of private
life, saying the relationship of husband and wife . .
. is founded in nature, but modified by civil society:
the one directing man to continue and multiply his
species, the other prescribing the manner in which
that natural impulse must be confined and
regulated.
33
The next great relationship was [t]hat
of parent and child, which is consequential to that of
marriage, being its principal end and design: and it
is by virtue of this relation that infants are
protected, maintained, and educated.
34
Later, he
cites Montesquieu for the proposition that the
establishment of marriage in all civilized states is
built on this natural obligation of the father to
provide for his children.
35


Like Blackstone and Montesquieu, John Locke
had a profound influence on the thinking of the
Framing generation. He too wrote of marriage as a
procreative, companionate institution that binds
fathers and mothers to care for their children:

Conjugal society is made by a voluntary
compact between man and woman, and
though it consist chiefly in such a
communion and right in one another's
32
Id.
33
WILLIAM BLACKSTONE, 1 COMMENTARIES ON THE LAWS OF
ENGLAND 410 (1765).
34
Id.
35
Id. at 435.


000107
19
bodies as is necessary to its chief end,
procreation, yet it draws with it mutual
support and assistance, and a
communion of interests too, as
necessary not only to unite their care
and affection, but also necessary to
their common offspring, who have a
right to be nourished and maintained
by them till they are able to provide for
themselves.
36


Locke went so far as to argue that marriage has no
necessary form or function beyond this chief end of
procreation.
37


The principal founding text of Scots Law,
Viscount Stairs 1681 Institutions of the Law of
Scotland which influenced the thinkers of the
Scottish Enlightenment (David Hume, Thomas Reid,
Adam Smith, Dugald Stewart, etc.) who in turn
influenced the Framers of the U.S. Constitution,
treats the relationship of marriage between a man
and a woman as a primary example of the Natural
Law to which statutory law is indebted as source and
as authority. Stair writes: Law is the dictate of
reason determining every rational being to that
which is congruous and convenient for the nature
and condition thereof . . . . Obligations arising from
voluntary engagement take their rule and substance
from the will of man and may be framed and
36
JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT 78-
79 (1690).
37
JOHN WITTE JR., FROM SACRAMENT TO CONTRACT: MARRIAGE,
RELIGION, AND LAW IN THE WESTERN TRADITION 280 (2d ed.
2012).


000108
20
composed at his pleasure; but so cannot marriage,
wherein it is not in the power of the parties, though
of common consent, to alter any substantial . . . .
Marriage ariseth even from the primitive law of
nature . . . and it is given for the very example of the
Natural law.
38


David Hume, another important philosophical
influence in the early United States, noted that
[t]he long and helpless infancy of man requires the
combination of parents for the subsistence of their
young.
39


Given this intellectual and cultural heritage,
American treatise writers naturally spoke of
marriage as a legal status with a chief end of
regulating procreation, by which they understood not
merely the fact of begetting children but also their
education and maintenance. Indeed, Noah Websters
1828 dictionary includes an account of the
institutions divine origin for the purpose of
preventing the promiscuous intercourse of the sexes,
for promoting domestic felicity, and for securing the
maintenance and education of children.
40


38
JAMES DALRYMPLE, VISCOUNT STAIR, 1 THE INSTITUTIONS OF
THE LAW OF SCOTLAND 1, 24 (1681) (spelling and capitalization
modernized).
39
DAVID HUME, AN ENQUIRY CONCERNING THE PRINCIPLES OF
MORALS 66 (1751).
40
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE n.p. (1
st
ed. 1828); see also SAMUEL JOHNSON, A
DICTIONARY OF THE ENGLISH LANGUAGE (1755) (defining
marriage as the act of uniting a man and woman for life).


000109
21
Justice Story wrote: Marriage is not treated as a
mere contract between the parties . . . . But it is
treated as a civil institution, the most interesting
and important in its nature of any in society. Upon it
the sound morals, the domestic affections, and the
delicate relations and duties of parents and children
essentially depend.
41
New York Chancellor James
Kent said: We may justly place to the credit of
marriage, a great share of the blessings which flow
from . . . the education of children.
42
Perhaps the
most prominent treatise writer in mid-nineteenth
century America was Joel Prentiss Bishop who
wrote, presciently: Marriage between two persons of
one sex could have no validity, as none of the ends of
matrimony could be accomplished thereby.
43
In his
1851 legal encyclopedia, John Bouvier explained:
The end of marriage is the procreation of children
and the propagation of the species.
44


In a treatise published in 1905, James Schouler
described the parent and child bond as a relation
which results from marriage.
45
A few decades later,
Frank Keezers family law treatise says: Marriage is
universal; it is founded on the law of nature in
which [n]ot only are the parties themselves
41
JOSEPH STORY, COMMENTARIES ON THE CONFLICTS OF LAWS
168 (1834).
42
JAMES KENT, 2 COMMENTARIES ON AMERICAN LAW 76 (3d ed.
1838).
43
JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF
MARRIAGE & DIVORCE 225 (1
st
ed. 1852).
44
JOHN BOUVIER, 1 INSTITUTES OF AMERICAN LAW 113-114
(1851).
45
JAMES SCHOULER, LAW OF THE DOMESTIC RELATIONS 235
(1905).


000110
22
interested but likewise the state and the community
since it is the source of the family.
46
He specifically
defines legal marriage as a union of a man and a
woman in the lawful relation of husband and wife,
whereby they can cohabit and rear legitimate
children.
47


This understanding was not merely academic. It
was widely accepted by state and federal courts. This
Court said: no legislation can be supposed more
wholesome and necessary . . . than that which seeks
to establish it on the basis of the idea of the family,
as consisting in and springing from the union for life
of one man and one woman in the holy estate of
matrimony.
48
A few years later, this Court said
marriage is an institution, in the maintenance of
which in its purity the public is deeply interested, for
it is the foundation of the family and of society,
without which there would be neither civilization nor
progress.
49


In 1859, the California Supreme Court said: The
first purpose of matrimony, by the laws of nature
and society, is procreation.
50
In 1952, the same
court said marriage advances important social
interests by channel[ing] biological drives that
might otherwise become socially destructive and
ensur[ing] the care and education of children in a
46
FRANK H. KEEZER, A TREATISE ON THE LAW OF MARRIAGE AND
DIVORCE 55 (1923).
47
Id. at 56.
48
Murphy v. Ramsey, 114 U.S. 15, 45 (1885).
49
Maynard v. Hill, 125 U.S. 190, 211 (1888).
50
Baker v. Baker, 13 Cal. 87, 103 (1859).


000111
23
stable environment.
51
As late as 2008, the
California Court of Appeals noted that historically
annulments based on fraud have only been granted
in cases where the fraud relates in some way to the
sexual, procreative or child-rearing aspects
of marriage, since these went to the very essence of
the marriage regulation.
52
This link has been
commonly noted in cases throughout the country.
53


When this Court first applied the right to marry
to invalidate a state law limiting marriage, it cited
two cases as precedent.
54
The first was Skinner v.
Oklahoma, which had explicitly linked marriage and
procreation: We are dealing here with legislation
which involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the
51
DeBurgh v. DeBurgh, 250 P.2d 598, 601 (Cal. 1952).
52
In re Marriage of Ramirez, 81 Cal Rptr. 3d 180, 184-185 (Cal.
Ct. App. 2008).
53
Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir. 1975)
(procreation of offspring could be considered one of the major
purposes of marriage.); Heup v. Heup, 172 N.W.2d 334, 336
(Wis. 1969) (Having children is a primary purpose of
marriage.); Zoglio v. Zoglio, 157 A.2d 627, 628 (D.C. App.
1960) (One of the primary purposes of matrimony is
procreation.); Stegienko v. Stegienko, 295 N.W. 252, 254 (Mich.
1940) (procreation of children is one of the important ends of
matrimony); Gard v. Gard, 169 N.W. 908, 912 (Mich. 1918) (It
has been said in many of the cases cited that one of the great
purposes of marriage is procreation.); Grover v. Zook, 87 P.
638, 639 (Wash. 1906) (One of the most important functions of
wedlock is the procreation of children.). See also Defendants-
Intervenors-Appellants Opening Brief, Perry v. Brown, 671
F.3d 1052 (9th Cir. September 17, 2010) at 58-59 note 26
(collecting cases from 41 states and the District of Columbia on
this point).
54
Loving v. Virginia, 388 U.S. 1, 12 (1967).


000112
24
very existence and survival of the race.
55
The other
case was Maynard v. Hill which, as noted above,
called marriage the foundation of the family.
56


State courts addressing arguments for redefining
marriage have noted the links between marriage and
procreation in the right to marry cases. The
Washington Supreme Court said: 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 childrearing.
57
Marylands highest
court said:

All of the cases infer that the right to
marry enjoys its fundamental status
due to the male-female nature of the
relationship and/or the attendant link
to fostering procreation of our species. .
. . Thus, virtually every Supreme Court
case recognizing as fundamental the
right to marry indicates as the basis for
the conclusion the institutions
inextricable link to procreation, which
necessarily and biologically involves
participation (in ways either intimate
or remote) by a man and a woman.
58


In short, the antecedents of U.S. law from
ancient to modern times, as well as U.S. law itself,
55
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
56
Maynard v. Hill, 125 U.S. 190, 211 (1888).
57
Andersen v. King County, 138 P.3d 963, 978 (Wash. 2006).
58
Conaway v. Deane, 932 A.2d 571, 621 (Md. 2007).


000113
25
have consistently recognized the biological and social
realities of marriage, including its universal nature
as a male-female unit advancing purposes related to
procreation and childrearing.

III. HISTORICAL EVIDENCE MAKES CLEAR
THAT ATTEMPTS TO DOWNPLAY THE
SIGNIFICANCE OF THE STATE INTERESTS
IN MARRIAGE RELATED TO PROCREATION
ARE MISGUIDED.
In an effort to dilute or distract from these basic
facts about marriage throughout history, the courts
below and proponents of marriage redefinition have
raised a number of objections to the historical record.
These efforts are, however, unavailing.

A. The District Courts Portrayal of the
Historical Evidence Was Deeply Flawed.
The district court sought to tar the male-female
marriage institution by associating it with
repugnant and discredited notions and to dilute the
evidence of the universality of marriages male-
female requirement by suggesting that it was but
one of many elements of marriage that have been
gradually evolving out of favor.

This effort is misguided. Though, as noted, the
procedures and incidents of marriage have varied
over time and across cultures, some elements of the
legal and social understanding of marriage have
been remarkably consistent, even universal. Among
these are the understandings that marriage unites
men and women and that marriage serves important

000114
26
interests related to procreation and childrens needs.
As even the district court admitted, race and sex
restrictions were never part of the historical core of
the institution of marriage.
59
Thus, it is strange
that the district court brings up anti-miscegenation
laws in an attempt to portray Proposition 8 as of a
piece with those discriminatory provisions.
60


The history of these racially-discriminatory laws
makes clear that the district courts admission is
correctthat race restrictions, unlike gender
restrictions, were never central to marriage. Under
the common law of England, difference in race was
not a disability rendering parties incapable of
contracting marriage.
61
In the United States, Joel
Bishop described racial restrictions on marriage as
impediments, which are known only in particular
countries, or States.
62
Nearly half of the thirteen
colonies did not have these laws, some states never
enacted them, and even in the Southern states it
was only during Reconstruction that anti-
miscegenation laws spread to a number of Southern
states for the first time.
63
Additionally, many
59
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal.
2010).
60
Id. at 957-958 (findings of fact 24 & 25).
61
Robert Kovach, Note, Miscegenation Statutes and the
Fourteenth Amendment 1 CASE W. RES. L. REV. 89, 89 (1949);
Irving G. Tragen, Statutory Prohibitions Against Interracial
Marriage, 32 CAL. L. REV. 269, 269 & n.2 (1944).
62
JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF
MARRIAGE & DIVORCE 213 (1
st
ed. 1852).
63
Jill Elaine Hasday, Federalism and the Family Reconstructed
45 UCLA L. REV. 1297, 1345 n. 172 (1998); Peter Wallenstein,
Race, Marriage, and the Law of Freedom: Alabama and
Virginia, 1860s-1960s 70 CHI.-KENT L. REV. 371, 372 (1994);


000115
27
states repealed their anti-miscegenation laws after
ratification of the Civil War amendments.
64

Throughout history, race has never been a central
feature of the core definition of marriage.

By contrast, as the forgoing demonstrates,
gender has always been at the core. Hence, just five
years after this Court invalidated Virginias anti-
miscegenation law, it summarily and unanimously
rejected a claim that the Fourteenth Amendment
required a state to redefine marriage to include
same-sex couples.
65


The district court also attempts to link the
opposite-sex and procreative aspects of marriage to
the doctrine of coverture. One of its findings of fact
says that the California attorney general admits
that the doctrine of coverture, under which women,
once married, lost their independent legal identity
and became the property of their husbands, was once
viewed as a central component of the civil institution
of marriage.
66
To the extent the court meant that
coverture was central to the definition of marriage,
the assertion is false. To be sure, gender roles
within marriage have varied across time and
Lynn Wardle & Lincoln C. Oliphant, In Praise of Loving:
Reflections on the Loving Analogy for Same-Sex Marriage, 51
HOW. L.J. 117, 180-81 (2007).
64
James Trosino, Note, American Wedding: Same-Sex Marriage
and the Miscegenation Analogy 73 B.U. L. REV. 93, 98 (1993)
(citing ROBERT J. SICKELS, RACE, MARRIAGE AND THE LAW 64
(1972).
65
Baker v. Nelson, 409 U.S. 810 (1972).
66
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (N.D. Cal.
2010).


000116
28
cultures; what it means to be a husband or wife
changes. But what has remained fundamentally
unchanged is the core understanding that marriage
exists to unite a man and a woman for procreative
and child-rearing ends. The district court later
makes the implausible assertion that trial evidence
suggests many reasons for this tradition of exclusion
[of same-sex couples from marriage], including
gender roles mandated through coverture.
67
There
is no evidence for this absurd assertion. Coverture
was abandoned without any hint of altering the
basic opposite-sex definition of marriage. And
societies without coverture did not define marriage
as the union of any two persons irrespective of
gender.

Indeed, the prominent and influential legal
commentators noted above endorsed the opposite-sex
nature of marriage and its procreative purposes
while noting that the doctrine of coverture was not
similarly central to the marriage institution. Justice
Story said that the jurisprudence of different
nations contains almost infinitely diversified
regulations upon [the] subject of the incidents of
marriage. These may respect the personal capacity
and powers of the husband and wife, or the rights of
each in regard to the property, personal or real,
acquired, or held by them during the coverture.
68

Joel Bishop similarly noted a distinction between
the marriage status and those property rights which
are attendant upon and more or less closely
67
Id. at 993.
68
JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS
125-126 (1834).


000117
29
connected with it.
69
He explained that while
[r]ights of property are attached to [marriage] on
very different principles in different countries so
that in some there is a communio bonorum, in some
each retain their separate property; by our law it is
vested in the husband.
70
Thus, he notes the
contingent nature of this particular marriage
incident and concludes: Marriage may be good
independent of any considerations of property, and
the vinculum fidei may well subsist without them.
71


Contrast this with his comments about the
centrality of the opposite-sex nature of marriage: It
has always, therefore, been deemed requisite to the
entire validity of every marriage . . . that the parties
should be of different sex.
72


William Blackstone explained that coverture was
not part of the civil law tradition.
73
California,
which had originally been a civil law jurisdiction, did
not fully establish coverture in its laws.
74


Any comparison between the opposite-sex
requirement of marriage and the doctrine of
coverture is unfounded.

69
JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF
MARRIAGE & DIVORCE 37 (1
st
ed. 1852).
70
Id.
71
Id.
72
Id. at 225 (1
st
ed. 1852).
73
WILLIAM BLACKSTONE, 1 COMMENTARIES ON THE LAWS OF
ENGLAND 432 (1765).
74
See JAMES SCHOULER, LAW OF THE DOMESTIC RELATIONS 182
(1905); CAL. CONST. art. XI, 14 (1849).


000118
30
B. Common Objections to Social
Interests in Marriage Related to
Procreation are Similarly Flawed.
Another tactic for avoiding the historical lesson
of male-female marriages universality and link to
children has been to suggest it is irrelevant because
of instances where married couples cannot or do not
have children.

Thus, the district court said: The evidence did
not show any historical purpose for excluding same-
sex couples from marriage, as states have never
required spouses to have an ability or willingness to
procreate in order to marry.
75


This is a red herring. The existence of infertile
married couples does not mean that the child-
centered purposes of marriage, universally
recognized through time and across cultures, are
invalid. None of the major commentators on
marriage has thought that allowing infertile couples
to marry undermines the primary meaning of
marriage as a procreative, child-centered union.
They have of course understood that some couples
cannot or will not have children.
76
But the fact that
the traditional marriage model might include some
male-female couples who do not fulfill marriages
primary social function does not mean that such
unions either undermine it or fail to fulfill other
75
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal.
2010).
76
Wendel v. Wendel, 30 A.D. 447, 449 (N.Y. App. 1898) (it has
never been suggested that a woman who has undergone
[menopause] is incapable of entering the marriage state).


000119
31
functions. Marriage is an essential social paradigm,
a model, a norm that teaches, guides, and molds,
albeit imperfectly and incompletely. As one of the
dissenters in Massachusetts same-sex marriage case
noted: Admittedly, heterosexual intercourse,
procreation, and child care are not necessarily
conjoined (particularly in the modern age of
widespread effective contraception and supportive
social welfare programs), but an orderly society
requires some mechanism for coping with the fact
that sexual intercourse commonly results in
pregnancy and childbirth. The institution of
marriage is that mechanism.
77
Allowing infertile
couples to marry does not change this in the least.

One obvious practical reason government does
not limit marriage to fertile couples is that it would
be difficult (if not impossible) and certainly
inappropriately intrusive to determine ahead of time
which couples are fertile.
78
Whether a couple is
fertile is often unknowable. It is not uncommon to
hear of married couples who learn that they cannot
have children, adopt a child, and are then surprised
to learn that the wife has become pregnant.

Moreover, some couples who do not initially plan
to have children may later change their minds or
conceive unintentionally.
79
Even in an age of easily-
available contraception, a large majority of births
77
Goodridge v. Department of Public Health, 798 N.E.2d 941,
995 (Mass. 2003) (Cordy, J., dissenting).
78
Standhardt v. Superior Court, 77 P.3d 451, 462-463 (Ariz.
App. 2003); Adams v. Howerton, 486 F.Supp. 1119, 1124-1125
(C.D. Cal. 1980).
79
Morrison v. Sadler, 821 N.E.2d 15, 24-25 (Ind. App. 2005).


000120
32
are reportedly unintended by either the mother or
father.
80

The Indiana Court of Appeals addressed and
cogently rejected the same fertility argument
accepted by the district court by noting that it was
essentially a defective overbreadth argument:

A reasonable legislative classification is
not to be condemned merely because it
is not framed with such mathematical
nicety as to include all within the
reason of the classification and to
exclude all others . . . There was a
rational basis for the legislature to
draw the line between opposite-sex
couples, who as a generic group are
biologically capable of reproducing, and
same-sex couples, who are not. This is
true, regardless of whether there are
some opposite-sex couples that wish to
marry but one or both partners are
80
Joyce C. Abma, et al., Fertility, Family Planning, and
Womens Health: New Data from the 1995 National Survey of
Family Growth 23 VITAL HEALTH STATISTICS 28, table 17 (1997)
(70.4 percent of births to married women were intended by both
parents, compared to just 28 percent of births to unmarried
mothers). See also Stanley K. Henshaw, Unintended
Pregnancies in the United States 30 FAMILY PLANNING
PERSPECTIVES 24, 28, table 3 (1998); Haishan Fu, et al.,
Contraceptive Failure Rates: New Estimates from the 1995
National Survey of Family Growth 31 FAMILY PLANNING
PERSPECTIVES 55, 56 (1999); James Trussel & Barbara Vaughn,
Contraceptive Failure, Method-Related Discontinuation and
Resumption of Use: Results from the 1995 National Survey of
Family Growth 31 FAMILY PLANNING PERSPECTIVES 64, 71
(1999).


000121
33
physically incapable of reproducing.
81


Further, a married husband and wife who
cannot or do not have a child through their own
sexual relationship still advance the historically-
recognized procreative purposes of marriage. First,
the interest in procreation is not solely that it take
place, but also that children are reared by a mother
and father in a family unit. As the New York Court
of Appeals explained, the states interest in
procreation includes more than just biological
reproduction: the state can rationally believe that it
is better, other things being equal, for children to
grow up with both a mother and a father.
82
The
court explained: 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.
83
While [i]t is obvious that
there are exceptions to this general rulesome
children who never know their fathers, or
their mothers, do far better than some who grow up
with parents of both sexes[] the Legislature could
find that the general rule will usually hold.
84


A legal historian likewise notes:

Procreation, however, means more than
just conceiving children. It also means
rearing and educating them for
spiritual and temporal livinga
81
Morrison, 821 N.E.2d at 27.
82
Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006).
83
Id.
84
Id.


000122
34
common Stoic sentiment. The good of
procreation cannot be achieved in this
fuller sense simply through the licit
union of husband and wife in sexual
intercourse. It also requires
maintenance of a faithful, stable, and
permanent union of husband and wife
for the sake of their children.
85


A number of the historical sources cited above
clearly note that the purposes served by marriage
include child well-being in addition to mere
propagation.
86
As Marylands Court of Appeals
explained, marriage is conferred on opposite-sex
couples not because of a distinction between whether
various opposite-sex couples actually procreate, but
rather because of the possibility of procreation.
87


Thus, couples who rear children via adoption (or
its predecessor statuses such as guardianship or
85
John Witte, Jr., Propter Honoris Respectum: The Goods and
Goals of Marriage 76 NOTRE DAME L. REV. 1019, 1035 (2001).
86
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE n.p. (1
st
ed. 1828) (securing the maintenance and
education of children); JAMES KENT, 2 COMMENTARIES ON
AMERICAN LAW 76 (3d ed. 1838 (We may justly place to the
credit of marriage, a great share of the blessings which flow
from . . . the education of children.); FRANK H. KEEZER, A
TREATISE ON THE LAW OF MARRIAGE AND DIVORCE 56 (1923) (a
union of a man and a woman in the lawful relation of husband
and wife, whereby they can cohabit and rear legitimate
children.); DeBurgh v. DeBurgh, 250 P.2d 598, 601 (Cal. 1952)
(the institution of marriage serves the public interest by
channel[ing] biological drives that might otherwise become
socially destructive and ensur[ing] the care and education of
children in a stable environment.).
87
Conaway v. Deane, 932 A.2d 571, 633 (Md. 2007).


000123
35
other informal relationships) are still serving these
procreative functions. Children who would
otherwise be deprived of a mother or father because
of death, abuse, neglect, or abandonment still have
that opportunity with another married man and
woman.

In addition to the need to provide mothers and
fathers for children who would otherwise not have
the opportunity to be reared by a father and mother,
the law is also concerned with encouraging those
who might create children to take responsibility for
them and not to create children in unstable
nonmarital settings. As one commentator has
explained, the laws concern with illegitimacy was
rarely spelled out, but discerning it clarifies why
courts were so concerned with sex within marriage
and renders logical the traditional belief that
marriage is intimately connected with procreation
even as it does not always result in procreation.
88

As Massachusetts Supreme Judicial Court Justice
Cordy explains: The institution of marriage
encourages parents to remain committed to each
other and to their children as they grow, thereby
encouraging a stable venue for the education and
socialization of children.
89


Additionally, if only one spouse in a marriage is
infertile, the norms of marriage will discourage the
88
Laurence Drew Borten, Sex, Procreation, and the State
Interest in Marriage 102 COLUM. L. REV. 1089, 1114-15 (2002).
89
Goodridge v. Department of Public Health, 798 N.E.2d 941,
996 (Mass. 2003) (Cordy, J., dissenting).


000124
36
fertile spouse from engaging in irresponsible
procreation outside of marriage.

Even couples who neither have nor rear children
set an important example for those that may.
Married infertile couples still support the norm that
sexual relationships between men and women
should take place within marriage. Their observance
of vows of faithfulness reinforces the social norm
that children should ideally enjoy the security,
nurture, and love of their father and mother and not
be subject to the turbulence of impermanent
couplings that lead to motherless or fatherless
families.

Notwithstanding the occurrence of exceptional
circumstances, the historical record is still clear that
marriage has universally advanced child-centered
purposes by encouraging adults whose types of
relationship may produce children to enter marriage.

* * * *

When the People of California adopted
Proposition 8, they acted to retain in their law an
understanding of marriage that, until very recently,
was recognized universally and without exception
throughout time and across cultures. That
conception of the institution of marriage has
consistently been understood to advance crucial
social interests in procreation, understood as the
bearing and rearing of children. The remarkable
consistency of this understanding makes clear that
the decision of the People of California to enact
Proposition 8 was anything but irrational.

000125
37

CONCLUSION
For the foregoing reasons, amici respectfully
request that the Court reverse the decision of the
court below.

Respectfully submitted,


WILLIAM C. DUNCAN
Counsel of Record
MARRIAGE LAW FOUNDATION
1868 N 800 E
Lehi, UT 84043
801-367-4570
duncanw@marriagelawfoundation.org

January 24, 2013


000126





TAB 15
(Reserved)









TAB 16
(Reserved)