Carlos A. Ball, et al., Amicus Brief

8/9/2019 Carlos A. Ball, et al., Amicus Brief

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Nos. 14-556, 14-562, 14-571, 14-574

Supreme Court of the United States

No. 14-556

J AMES O BERGEFELL , et al . , and B RITTANI H ENRY , et al .,

Petitioners,—v.—

R ICHARD H ODGES , Director,Ohio Department of Health, et al. ,

Respondents.

( Caption continued on inside cover )

ON WRITS OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE CARLOS A. BALL,DISTINGUISHED PROFESSOR OF LAW, RUTGERS

UNIVERSITY; ALFRED BROPHY, JUDGE JOHN J. PARKERDISTINGUISHED PROFESSOR OF LAW, UNIVERSITY OF

NORTH CAROLINA SCHOOL OF LAW; JULIE NOVKOV,PROFESSOR AND CHAIR, DEPARTMENT OF POLITICAL

SCIENCE, UNIVERSITY AT ALBANY, SUNY;SCOTT SKINNER-THOMPSON, ACTING ASSISTANTPROFESSOR, NYU SCHOOL OF LAW; RICHARD F.

STORROW, PROFESSOR OF LAW, CITY UNIVERSITY OF NEW YORK IN SUPPORT OF PETITIONERS

d

P AUL J. H ALLCounsel of Record

J EFF D E G ROOTG EORGE G IGOUNAS

J ESSE MEDLONG

DLA P IPER LLP (US)555 Mission Street, Suite 2400San Francisco, CA 94105-2933(415) 836-2500

[email protected]

Attorneys for Amici Curiae

C ARLOS A. B ALL Dis tinguished Professor

of LawRUTGERS U NIVERSITY

SCHOOL OF L AW

123 Washington StreetNewark, NJ 07102


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No. 14-562

V ALERI A T ANCO , et al ., Petitioners,

—v.—

B ILL H ASLAM , Governor of Tennessee, et al. ,

Respondents.

No. 14-571

A PRIL D E BOER , et al ., Petitioners,

—v.—

R ICK SNYDER , Governor of Michigan, et al. , Respondents.

No. 14-574

G REGORY BOURKE , et al . , and T IMOTHY LOVE , et al .,

Petitioners,—v.—

STEVE BESHEAR , Governor of Kentucky, et al. ,

Respondents.


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iiPAGE

IV. OPPONENTS OF SAME-SEXMARRIAGE CONTINUE TO MAKEPSEUDOSCIENTIFIC ANDPSEUDOEMPIRICAL CLAIMS

ABOUT SOCIAL AND CHILDWELFARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

64746 • DLA Piper • TCA -- Obergfell v. Hodges • 3rd Proof 3 - 5-15


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iii

Bowl in v. Commonweal th ,65 Ky. 5 (1867) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Brown v. Board of Educ at ion,347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . 12

Clark v. Jeter,486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . 23

Cleburne v. Cleburne Living Center,473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . 16

DeBoer v. Snyder ,772 F.3d 388 (6th Cir. 2014) . . . . . . . . 23, 24, 25

Dodson v. St ate,31 S.W. 977 (Ark. 1895) . . . . . . . . . . . . . . . . . 5

Ellis v. State,42 Ala. 525 (1868) . . . . . . . . . . . . . . . . . . . . . . . . 5

Gomez v. Perez,409 U.S. 535 (1973) . . . . . . . . . . . . . . . . . . . . . . 23

Gould v. Gould,61 A. 604 (Conn. 1905) . . . . . . . . . . . . . . . . . . 16

Green v. State,58 Ala. 190 (1877) . . . . . . . . . . . . . . . . . . . . . . . . 5

Jimenez v. Weinberger,417 U.S. 628 (1974) . . . . . . . . . . . . . . . . . . . . . . 22

Labine v. Vincent,

401 U.S. 532 (1971) . . . . . . . . . . . . . . . . . . . . . . 21, 22

TABLE OF AUTHORITIES

PAGE (S )Cases:



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ivPAGE (S )

Lalli v. Lalli,439 U.S. 259 (1978) . . . . . . . . . . . . . . . . . . . . . . 22

Levy v. Louisiana,391 U.S. 68 (1968) . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Lonas v. State,50 Tenn. 287 (1871) . . . . . . . . . . . . . . . . . . . . . . 6

Loving v. Virginia,388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . 4, 11, 12, 13

McLaughlin v. Florida,379 U.S. 184 (1964) . . . . . . . . . . . . . . . . . . . . . . 10

New Jersey Welfare Rights Org. v. Cahill,411 U.S. 619 (1973) . . . . . . . . . . . . . . . . . . . . . . 23

Olmstead v. L.C. ex r el. Zimring,527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . 16

Pe rez v. Sharp,198 P.2d 17 (Ca. 1948) . . . . . . . . . . . . . . . . . 8, 9, 23

Scott v. Georgia,39 Ga. 321 (1869) . . . . . . . . . . . . . . . . . . . . . . . . 6

Skinner v. Oklahoma,316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . . 16

State v. Brown,108 So. 2d 233 (La. 1959) . . . . . . . . . . . . . . . . 12

State v. Gibson,36 Ind. 389 (1871) . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Hairston,

63 N.C. 451 (1869) . . . . . . . . . . . . . . . . . . . . . . . 5



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vPAGE (S )

State v. Jackson,80 Mo. 175 (1883) . . . . . . . . . . . . . . . . . . . . . . . . 7

Weber v. Aetna Casualty & Surety Co.,406 U.S. 164 (1972) . . . . . . . . . . . . . . . . . . . . . . 22

Statutes:

Civil Rights Act of 1866 . . . . . . . . . . . . . . . . . . . . . . 5

Other Authorities:

A. Leon Higginbo tham, Jr . & Barbar a K.Kopytoff, Racial Purity and InterracialSex in the Law of Colonial and

An te be llum Vi rg in ia , 77 Geo. L.J.1967, 1994 n.127 (1989) . . . . . . . . . . . . . . . . . 4

Albe rt I. Gordon , Inter-Marriage: Interfaith,Interracial, Interethnic (1964) . . . . . . . . . . 11

An Ac t for Suppress ing Ou tlying Slaves , inThe Statutes at Large; Being a Collection

of All the Laws of Virginia Vo l. 3,pp. 86-87 (William Waller Heninged., 1823) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Carlos A. Ball, Same-Sex Marriage andChildren: A Tale of History, SocialScience, and Law (2014) . . . . . . . . . . . . . . . . . 24

Christopher Tiedeman, A Trea ti se on theLimitations of the Police Power in theUnited States 536 (1886) . . . . . . . . . . . . . . . . 14



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viPAGE (S )

David Popenoe, Life Without Father:Compelling New Evidence ThatFatherhood & Marriage Are IndispensableFor The Good Of Children & Society146 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Edward J. Larson, Sex, Race, and Science:Eugenics in the Deep South 22 (1995) . . . 15

Edward W. Spencer, Some Phases ofMarriage Law and Legislation from aSanitary and Eugenic Standpoint,25 Yale L. J. 58, 64 (1915) . . . . . . . . . . . . . . . . . . . 15

Emma O. Lundberg , Children of Illegitimate Bi rth and Measures fo r Thei r Protect ion(Children’s Bureau, U.S. Dep’t of Labor,Bureau Publication No. 166, 1926) . . . . . 19

Gregory Michael Dorr, Pr incipled Expediency :Eugenics, Naim v. Naim, and the SupremeCourt, 42 Am. J. Legal Hist. 119, 124(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Harry D. Krause, Equal Protection for theIllegitimate 65 Mich. L. Rev. 477(1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

J.P. Chamberlain, Eugenics and Limitationsof Marriage 9 A.B.A. J. 429, 429(1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

John Witte, Jr., The Sins of the Fathers:The Law and Theology of IllegitimacyReconsidered 139 (2009) . . . . . . . . . . . . . . . . . 18



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viiPAGE (S )

Kingsley Davis, Illegitimacy and the SocialStructure 45 Am. J. Soc. 215, 219(1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Kristin Anderson Moore et al., Child Trends,Marriage From a Child’s Perspective:How Does Family Structure AffectChildren and What Can We Do About It?1–2 (2002), available athttp://www.childtrends.org/

files/MarriageRB602.pdf . . . . . . . . . . . . . . . . 23Madison Grant, The Passing of The Great

Race: Or the Racial Basis of EuropeanHistory 47 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Matthew B. O’Brien, Why Liberal Neutrality Proh ib it s Same-Sex Marriage: Rawls, Po li tical Libe ra li sm, and the Family2012 Brit. J. Am. Leg. Stud. 411) . . . . . . . 24

Michael Grossberg, Governing The Hearth:Law and the Family in Nineteenth-Century America 197–98 (1988) . . . . . . . . 18

Michael Grossberg, Guarding the Altar: Phys io logica l Rest ri ct ions and the Riseof State Intervention in Matrimony 26

Am. J. Legal Hist . 197, 219 (1982) . . . . . 13, 14

Negro Womens Children to Serve According to the Condition of the Mother, in TheStatutes at Large; Being a Collectionof All the Laws of Virginia Vo l. 2,

p. 170 (William Waller Hening ed.,1823) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4



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viiiPAGE (S )

Peggy Pascoe, What Comes Naturally:Miscegenation Law and the Making ofRace in America 115–23 (2009) . . . . . . . . . 7

Percy Gamble Kammerer, The UnmarriedMother: A Study of Five HundredCases (1918) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Robert J. Cynkar, Buck v. Bell: “FeltNecessities” v. Fundamental Values 81Colum. L. Rev. 1418, 1432 (1981) . . . . . . 14

Thomas A. Foster, Sex and the Eighteenth-Century Man: Massachusetts and theHistory of Sexuality in America129 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . 5



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INTEREST OF AM IC I CU RI AE

Amici 1 consist of a group of scholars who havetaught and written on the history of family lawand policy. This brief aims to provide the Courtwi th an exp lana t ion o f t he ways in wh ichpurportedly scientific evidence and claims havebeen used historically to justify discriminatorypolicies in family law. The amici scholars 2 areCarlos A. Ball, Distinguished Professor of Law,Rutgers University; Alfred Brophy, Judge John J.

Parker Distinguished Professor of Law, Universityof North Carolina School of Law; Julie Novkov,Professor and Chair, Department of Poli t icalSc ience , Un ive r s i ty a t A lbany, SUNY; Sco t tSkinner-Thompson, Acting Assistant Professor,NYU School of Law; Richard F. Storrow, Professorof Law, City University of New York.

1 Pursuant to Sup. Ct. R. 37.6, amici certify that nocounsel for a party authored this brief in whole or in part,and no party or counsel for a party made a monetarycontribution intended to fund the preparation or submissionof this brief. No person other than amici , their employees, ortheir counsel made a monetary contribution to the preparationor submission of this brief. Letters from Respondents con-senting to the filing of amicus curiae briefs in support of either party or of neither party have been filed with theClerk of the Court. Amici have received written consent to

the filing of this brief from each Petitioner.2 Amic i appear in their individual capacities;

institutional affiliations are listed for identificationpurposes only.


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SUMMARY OF ARGUMENT

The h i s to ry o f pas t c l a s s -based mar i t a lexclusions has clear implications for the presentappea l . Tha t h i s to ry t eaches us t ha t t heempirical-sounding, pseudoscientific assertions of one era’s jurists and counsel often are revealed asinvidious and indefensible discrimination overtime. Such empirical-sounding, pseudoscientificassert ions have been advanced in underlyingbriefs, including amici briefs filed in the U.S.

Court of Appeals for the Sixth Circuit by marriageequality opponents, which argue that denyingmarriage to same-sex couples promotes the well-being of society and children. These briefs, andproponen t s o f s imi l a r a rgumen t s , desc r ibehouseholds headed by married heterosexuals whoare biologically related to their children as the“optimal” setting for rearing children. They arguethat other family structures—including ones ledby same-sex couples—undermine the well-being of society and children.

How c l a s s -based mar i t a l exc lus ions weredefended in the past—and how those justificationslater were exposed as false—should influence thisCour t ’s a s ses smen t o f s imi l a r de fenses and

justifications here. Exclusionary policies aimed atdeny ing en t i r e c l a s ses o f i nd iv idua l s t heopportunity to marry have been rare in Americanhistory. Most have involved attempts to rely onsupposed ly “ sc i en t i f i c” ev idence to j u s t i fyinvid ious d iscr iminat ion by contending tha tcertain family structures were bad for society andch i ld ren . These e ffo r t s i nc luded l aws (1 )p roh ib i t i ng coup le s o f d i f f e ren t r aces f rommarrying; (2) res t r ic t ing people wi th menta l

2


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AR GU ME NT

I . A NT IM IS CE GE NATI ON LAWS WE REJUSTIFIED BY PSEUDOSCIENTIFIC

AND PSEUDOEMPIRICAL CLAIMS ABOUTSOCIAL AND CHILD WELFARE

Virginia implemented the earliest and mostcomprehens ive r egu la t ion o f i n t e r r ac i a lrelationships in the American colonies. Initially,those efforts focused not on marriage, but on thelegal status of interracial children.

Three decades before Virginia banned marriageacross color lines, i t addressed the birth of agrowing number of interracial children by makingthe legal status of interracial children dependenton the mothers’ status. Negro Womens Children toServe According to the Condition of the Mother , in2 The Statutes at Large; Being a Collection of Allthe Laws of Virginia 170 (William Waller Heninged., 1823). The statute’s purpose was to make surethe law considered the interracial children of

female s laves a l so to be s laves . See A. LeonHigginbotham, Jr. & Barbara K. Kopytoff, Racial

Purity and Interracial Sex in the Law of Colonialand Antebellum Virginia , 77 Geo. L.J. 1967, 1994n.127 (1989).

Virginia’s f i r s t s tatute banning inter racia lmarriages, enacted in 1691, reflected this focus onchildren. That law, whose progeny this Courtstruck down almost three hundred years later inLoving v. Virginia , 388 U.S. 1 (1967), was enactedto “prevent . . . tha t abominable mixture andspurious issue which hereafter may encrease inthis dominion . . . .” An Act for Suppressing Outlying Slaves , in 3 The Statutes at Large; Being

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a Collection of All the Laws of Virginia 86-87(William Waller Hening ed., 1823). The law’slanguage shows the legislators’ motivation incondemning marriages that crossed racial lineswas rooted in an objection to the offspring of interracial relationships.

V irg in i a was no t a lone in enac t ing an t i -miscegenation laws. Other colonies, both in thesouth and the north, did the same, several usingthe statutory model adopted by Virginia. Forexample, Massachusetts’s antimiscegenation lawof 1705 called for the prevention of “a Spuriousand Mixt Issue.” Thomas A. Foster, Sex and theEighteenth-Century Man: Massachusetts and theHistory of Sexuality in America 129 (2007).

The validity of these laws was not challenged inthe courts until after the Civil War, the enactmentof the Civil Rights Act of 1866, and the adoption of the Fourteenth Amendment. Courts in the secondhalf of the nineteenth century consistently upheldan t imiscegena t ion l aws by con tend ing tha t

marriage was a question of societal well-being, notind iv idua l r i gh t s imp l i ca t ing the U .S .Constitution. See, e.g. , Dodson v. State , 31 S.W.977 (Ark. 1895); State v. Gibson , 36 Ind. 389(1871); State v. Hairston , 63 N.C. 451 (1869).Some s t a t e h igh cour t s a l so he ld tha t t heFourteenth Amendment’s equality protections andthe Civil Rights Act of 1866 were not implicatedby marriage restrictions that applied equally towhites and blacks. See, e.g. , Ellis v. State , 42 Ala.525 (1868); Green v. State , 58 Ala. 190 (1877).

These ru l ings r e f l ec t ed a g rowing pseudo-sc i en t i f i c and eugen ic unde r s t and ing o f antimiscegenation laws. The Kentucky Court of

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The Missour i Supreme Cour t i n 1883 wastroubled by the purported inability of biracialindividuals to procreate—in its view, a sufficientbasis to find antimiscegenation laws constitu-tional. As the court explained, in a prejudice-driven misunderstanding of biology, “it is . . . awell authenticated fact that if the issue of a blackman and a white woman and a white man and ablack woman intermarry, they cannot possiblyhave any progeny, and such a fact sufficiently

justifies those laws which forbid the intermarriageof blacks and whites.” State v. Jackson , 80 Mo.175, 179 (1883).

Since colonial days, many Americans understoodinterracial procreation to be unnatural. But theviews of these postbellum courts and officialsr e f l ec t ed new conce rns r e l a t ed to supposedreproductive barrenness, hereditary deterioration,and physical and psychological deficiencies of interracial offspring. Arguments to keep marriagewithin color lines grew to include sociobiological

considerations grounded in supposedly empiricalclaims about procreation and the well-being of children. We now know such claims had no basesin f ac t and were d r iven by r ac i s t v i ewsantithetical to the notion that all Americans areentitled to equal treatment under law.

Defenders of antimiscegenation laws legitimizedtha t i deo logy by tu rn ing to the “ sc i ence” o f eugenics. Peggy Pascoe, What Comes Naturally:Miscegenation Law and the Making of Race in

America 115–23 (2009). Many proponents of “raceregeneration” and avoidance of “race suicide” sawantimiscegenation laws as important tools top romote ‘p roc rea t ive op t ima l i ty. ’ See , e .g . ,

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Madison Grant, The Passing Of The Great Race:Or the Racial Basis of European History 47, 60(1916) (contending interracial marriages promoted“ race su i c ide” and in s i s t i ng “ l aws aga ins tmiscegenation must be greatly extended if thehigher races are to be maintained.”); see alsoGregory Michael Dorr, Principled Expediency:Eugenics, Naim v. Naim , and the Supreme Court ,42 Am. J. Legal Hist. 119, 124 (1998) (“Americaneugenicists generally . . . argued for the scientificdefense of civilization through racial purity, usingtheir theories about race mixing to shape publicpolicy.”).

Even after eugenics was discredited for i tsuntenable moral positions and unsupportablescientific claims, defenders of antimiscegenationlaws invoked eugenics and procreative optimalitywhen defending race-based marital bans in court.For example, in defending the constitutionality of its antimiscegenation law before the CaliforniaSupreme Court in 1948, see Perez v. Sharp , 198

P.2d 17 (Ca. 1948), the State raised eugenic andsociological arguments centered on procreationand child welfare.

In Pe rez , the State first claimed whites weresuperior to other races and the progeny of raciallymixed couples were inferior to the progeny of wh i t e coup le s . Accord ing to the S ta t e , t hemarriage ban “prevent[ed] the Caucasian racefrom being contaminated by races whose membersare by nature physically and mentally inferior toCaucasians.” Id. at 23. California also contendedthe biological data showed “the crossing of widelydifferent races has undesirable biological results”and “the parties who enter into miscegenetic [sic]

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marriages have proved generally to be the dregs of both races,” making it likely “the offspring of suchmarriages will turn out to be inferior to both of their parents.” Respondent’s Supplemental Brief in Opposition to Writ of Mandate at 62, 78, Perezv. Sharp , 198 P.2d 17 (Ca. 1948).

Bes ides r e ly ing on r ac i s t eugen ic c l a ims ,California defended its antimiscegenation law onsupposed ly soc io log ica l g rounds . The S ta t econtended interracial marriages led to greatersocial tension because most people disapproved of them. Pe rez , 198 P.2d at 25. The State claimedblacks were “socially inferior,” and “the progeny of a marriage between a Negro and a Caucasiansuffer not only the stigma of such inferiority butthe fear of rejection by members of both races.” Id .at 26. According to the State, antimiscegenationlaws promoted child welfare by protecting childrenf rom the soc i a l i n fe r io r i t y and s t i gma tha taccompanied their parents’ marriages.

The court in Perez rejected the contention that

children of interracial unions were defective ordeficient . Id . at 23–24. That court explainedwhites’ greater societal success resulted not frommental superiority, but from the social advantagesof the i r sk in color. Id . a t 24 . The Cal i forn iaSupreme Court rejected the State’s argument thatthe stigma suffered by racially mixed children

just if ied the marr iage ban, reasoning “the faul tlies not with their parents, but with the prejudicesin the community and the laws that perpetuatethose prejudices by giving legal force to the belief that certain races are inferior.” Id . at 26. TheCour t fur ther expla ined “[ t ]he effec t of raceprejudice upon any community is unquestionably

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detrimental both to the minority that is singledout for discrimination and to the dominant groupthat would perpetuate the prejudice. I t is noanswer to say that race tension can be eradicatedthrough the perpetuation by law of the prejudicesthat give rise to the tension.” Id . at 25.

The Ca l i fo rn i a Supreme Cour t ’s op in ioninvalidating the antimiscegenation law under thefederal Constitution rejected the State’s purportedchild-based justifications for that law. But Floridarelied on those justifications fifteen years later tode fend a s t a tu t e c r imina l i z ing mixed- racecohabitation. See McLaughlin v. Florida , 379 U.S.184 (1964) . The S ta t e c l a imed the s t a tu t ep reven ted psycho log ica l and soc i a l ha rm tochildren born from interracial relationships. Brief of Appellee, McLaughlin v. Florida at 41–42, 379U.S. 184 (1964). Florida argued that its interest inavoiding such harm justified the enactment of an t imi scegena t ion l aws and the in t e r r ac i a lcohabitation ban. The State’s brief explained:

it is well known that both the white andthe negro race tend to shun the offspringof in terrac ia l marriages . . . . The needof offspring to identify with others is awell understood psychological factor inpresent times. The interracial offspringare not fu l ly accepted by e i ther race .There is therefore a clear psychologicalhand icap p rob lem among in t e r r ac i a loffspring.

Id . a t 42 . Accord ing to the S ta t e , t he“psychologica l handicaps of ch i ldren born of negro–white parentage” were enough to upholdthe constitutionality of its statute. Id . at 44.

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purported psychological harm to children from thesocial stigma of mixed-race marriages to the wayssegregated schools harmed black chi ldren asrecognized by this Court in Brown v. Bo ard of Education , 347 U.S. 483 (1954). By claiming top romote ch i ld ren ’s bes t i n t e re s t s , Vi rg in i aimplausibly relied on this Court’s landmark racialequality ruling to defend a law grounded in theperceived racial inferiority of blacks. Brief of

Appellee, Loving v. Virginia at 35, 388 U.S. 1(1967).

Final ly, Virginia also raised eugenic just i -fications for its antimiscegenation law. Its brief inLoving , quoting a 1959 opinion by the LouisianaSupreme Court, claimed “a state statute whichprohibits intermarriage or cohabitation betweenmembers of di ffe rent races . . . fa ll s square lywithin the police power of the state, which has aninterest in maintaining the purity of the races andin p reven t ing the p ropaga t ion o f ha l f -b reedchildren.” Id . (quoting State v. Brown , 108 So. 2d

233, 234 (La. 1959)).In sum, the history of antimiscegenation laws in

this country is littered with efforts to defend thosel aws a s bene f i c i a l t o soc i e ty because theypurportedly advanced the well-being of children.Those e ffo r t s were f r equen t ly suppor t ed bypseudoscientific claims in an effort to give thepolicies a veneer of empiricism.

To assess the justifications advanced to supportthe class-based marital exclusion at issue on thisappeal, this Court should note that efforts todefend antimiscegenation laws have failed the testof time. Indeed, this Court in Loving saw throughsuch efforts. Antimiscegenation laws, this Court

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conc luded , were pa t en t ly uncons t i t u t iona lbecause—rather than promoting the welfare of soc i e ty o r o f ch i ld ren—they were “measu resdesigned to maintain White Supremacy.” Loving ,388 U.S. at 11 (footnote omitted).

II. LAWS PROHIBITING DISABLED INDIVI-DUALS FROM MARRYING WERE JUSTI-F IE D B Y P SE UD OS CI EN TI FI C A NDPSEUDOEMPIRICAL CLAIMS ABOUTSOCIAL AND CHILD WELFARE

Sta tu t e s p roh ib i t i ng cogn i t ive ly d i sab ledindividuals from marrying were first enacted atthe end of the nineteenth century. Supportersdefended them by claiming they optimized humanreproduction and minimized the chances childrenwou ld deve lop phys i ca l and psycho log ica ldeficiencies.

During the first half of the nineteenth century,the re was a p reva i l i ng unde r s t and ing tha tmentally disabled individuals could lead happy

and productive lives through treatment and carein specialized institutions (i.e., asylums). MichaelGrossberg, Guarding the Altar : PhysiologicalRestrictions and the Rise of State Intervention inMatrimony , 26 Am. J. Legal Hist. 197, 219 (1982).But in the second half of the nineteenth century,the eugenic notion of improving the human raceby discouraging procreation among certain classesof individuals took hold among a growing numberof policymakers and experts. This drove a shiftfrom treating mental illness to preventing the

b i r th o f ch i ld ren wi th cogn i t ive and o the rdisabilities. Id .

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One way to achieve this goal was by forciblyster i l izing those deemed “feebleminded.” See

generally Paul A. Lombardo, Three Generations,No Imbeciles: Eugenics, The Supreme Court, andBuck v. Bell (2008). Those who embraced eugenicsa l so came to see mar r i age bans a s a way o f avoiding the social costs associated with the birthof mentally disabled children. Michael Grossberg,Guarding the Altar , at 219 (“Stringent and well-enforced marriage standards for conjugal fitnessbecame one wide ly advoca ted me thod o f intervening in the reproductive process to preventthe birth of feebleminded children.”). Put starklyby one constitutional scholar in 1886, “if the bloodof either of the parties to a marriage is taintedwith insanity there is imminent danger of itstransmission to the offspring, and through theprocreation of imbecile children the welfare of thestate is more or less threatened.” Id . (quotingChr i s tophe r Tiedeman , A Tre a t i s e on theLimitations of the Police Power in the UnitedStates 536 (1886)).

The first law specifically aimed at excluding theso-ca l led feebleminded f rom marr iage was acr iminal s ta tu te enac ted by the Connect icu tleg is la ture in 1896. That law prohib i ted themarr iages of ep i lep t ics , “ imbeci les ,” and the“feebleminded.” Robert J. Cynkar, Buck v. Bell:“Felt Necessi t ies” v. Fundamental Values , 81Colum. L. Rev. 1418, 1432 (1981). The legislationonly applied if the female partner was youngerthan for ty- f ive , making c lear i t s procrea t ive

concerns. See id . Several states, including Kansas,Michigan, New Jersey, and Ohio, soon adoptedsimilar statutes. Grossberg, Guarding the Altar ,at 221. Two states, South Dakota and Nebraska,

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were even more draconian: they required al lmentally disabled people to register with the Stateand prohibited them from marrying unless one of the wedding partners was infertile. Edward J.Larson, Sex, Race, and Science: Eugenics in the

Deep South 22 (1995).

As wi th r ace - based mar i t a l r e s t r ic t ions ,supporters of the disability marriage bans tried tolegitimate them by pointing to “scientific” claimstha t were ac tua l ly expres s ions o f i nv id iousprejudice against the disabled. For instance, asupporter of these bans wrote in the ABA Journalin 1923 that they were “based not on historicalr ul es . . . b ut o n s ci en ti fi c fa ct s. [ Th ey a re ]directed against two evils, the bringing into theworld of children with hereditary taints and theprotection of the public health by preventing thesp read o f d i sease th rough mar r i age . ” J .P.Chamber l a in , Eugen ic s and L imi t a t ions o f Marriage , 9 A.B.A. J . 429, 429 (1923).

Many legal commentators in the first decades of

t he twen t i e th cen tu ry ag reed tha t t he s t a t eposses sed an expans ive au tho r i ty t o imposemarital restrictions to promote the public’s safetyand health. As one author explained in the YaleLaw Journal in 1915, marriage is “a matter of general or common right, [and as such] is so firmlybound up with the very life of the state and withits social, moral and economic welfare as to bedistinctively and preëminently within the policepower.” Edward W. Spencer, Some Phases of Marriage Law and Legislation from a Sanitaryand Eugenic Standpoint , 25 Yale L. J. 58, 64(1915). This power, the author added, unques-tionably permitted the government to legislate for

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“the protection of the public or posterity through theprevention of diseased or degenerate offspring.” Id .

Some courts in the early twentieth centuryaccep ted the c l a ims made by suppor t e r s o f d i sab i l i t y mar r i age bans . Fo r example , t heConnec t i cu t Supreme Cour t , i n a 1905 caseinvolving the application of the ban to an epilepticman who attempted to marry, explained “thatepilepsy is a disease of a peculiarly serious andrevolting character, tending to weaken mentalforce, and often descending from parent to child,or entailing upon the offspring of the sufferersome other grave form of nervous malady, is amatter of common knowledge, of which courts willtake judicial notice.” Gould v. Gould , 61 A. 604,604–05 (Conn. 1905). The court concluded thestatute’s objectives were reasonable because thelaw applied to “a class [of people] capable of endangering the health of families and addinggreatly to the sum of human suffering.” Id . at 605.

This reasoning, of course, has been entirely repu-

diated today. Not only does forced sterilizationra i se cons t i t u t iona l i s sues , s ee Sk inne r v.Oklahoma , 316 U.S. 535 (1942), but this Court hasmade clear that people with disabilities haveconstitutional and statutory rights that protectthem from invidious discrimination. See, e.g. ,Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581,600 (1999) (holding the unjustified segregation of the mentally disabled in government facilitiesviolates the American with Disabil i t ies Act) ;Cleburne v. Cleburne Living Center , 473 U.S. 432,448–49 (1985) (holding that treating the disabledon the basis of prejudice and fear violates theEqual Protection Clause). Courts today would

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reject the pseudoscientific arguments about thewell-being of society and children used in the pastby defenders of disability marriage bans.

The disability marriage bans are another exampleo f t he r a re , bu t deep ly t roub l ing , e ffo r t s i n

American history to deny an ent ire class of peoplethe opportunity to marry based on pseudoscien-tific claims about how best to promote familyoptimality, child welfare, and the social good.

L ike the h i s to ry o f r ace -based mar i t a l

restrictions, this history should influence theCourt’s assessment of the arguments advanced tosupport the class-based marital exclusion at issuehere. With passing time, we see what should havebeen clear when the disability marriage bans wereenacted: the effort to prevent cognitively disabledindividuals from marrying reflected invidiouspre judices and a fa i lure to accept the equaldignity of a class of citizens. The effort was not, assupporters claimed, about promoting the welfareof society and children.

III . LEGAL DISCRIMINATION AGAINSTNONMARITAL CHILDREN WAS JUS-TIFIED BY PSEUDOSCIENTIFIC ANDPSEUDOEMPIRICAL CLAIMS ABOUTSOCIAL AND CHILD WELFARE

Marital laws that have purportedly sought topromote the social good by addressing procreativeand child welfare considerations have not beenlimited to outright bans. Those considerations alsop layed c ruc i a l ro l e s i n de fend ing l awsdisadvantaging children born outside marriage.

The American colonies followed English law indistinguishing between children born in wedlock,

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who were “legitimate” and could inherit propertyfrom their parents, and children born outsidemarriage, who were “illegitimate” and could notinhe r i t f rom anyone . Michae l Grossbe rg ,Governing The Hearth: Law and the Family inNineteenth-Century America 197–98 (1988). A child born out of wedlock was considered “ filiusnullius ,” the child and the heir of no one. Id . Incolonial America, as in England, the parents of “illegitimate” children (mothers, in particular)were subject to punishment, including f ines,imprisonment, and even public whippings, forwhat society deemed their sexual sins. John Witte,J r. , The S ins o f t he Fa the r s : The Law andTheology of Illegitimacy Reconsidered 139 (2009).

The nineteenth century saw legal reforms aimedat reducing the number of so-called illegitimate(he rea f t e r “nonmar i t a l ” ) ch i ld ren and a tmi t iga t ing some o f t he i r l ega l d i sab i l i t i e s .

A l though Eng l ish l aw d id no t a l low fo r t helegitimation of children through the parents’ sub-

sequent marriage or the fathers’ acknowledgmentof paternity, some American states beginning inthe early 1800s enacted laws providing one or bothavenues to legitimation. Grossberg, Governing theHear th 200–07 . The adven t o f common l awmarriages and the judicial application of a strongpresumption that children of married women werea l so the ch i ld ren o f t he i r husbands fu r the rreduced the number of nonmarital children. Id .Some s ta tes a l so began a l lowing nonmar i ta lchildren to inherit from their mothers (but not

their fathers). Id .The push to reform laws affecting nonmarital

children stalled, however, during the second half of the nineteenth century. As the legal historian

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Michae l Grossbe rg exp la ins , “ the pos t -1850 Ame rican obsess ion wi th imp rov in g fami ly lif ere invigora ted the use of the law to separa teillegitimate from legitimate offspring . . . . Thebe l i e f t ha t d i sc r imina to ry l aws r e in fo rcedlegitimate families and deterred spurious birthinhibited [additional] reform efforts.” Id . at 228–29.

By the turn of the twentieth century, prevailingunderstandings of “illegitimacy” began to reflecteugenic ideas, in particular the notion that thephenomenon was largely caused by the mental“defective[ness]” and “feeblemindedness” of singlemothers. See, e.g. , Percy Gamble Kammerer, TheUnmarried Mother: A Study of Five HundredCases (1918); Emma O. Lundberg, Children of I l l eg i t ima te B i r th and Measu res fo r The i r

Protection (Children’s Bureau, U.S. Dep’t of Labor,Bureau Publication No. 166, 1926).

Many suppor t e r s o f t r ea t ing nonmar i t a lchildren differently also claimed the discrimina-tion was necessary to promote social welfare and

family optimali ty. The prominent sociologistKingsley Davis articulated this view in 1939 whenhe wrote:

[T]he function of reproduction can becarried out in a socially useful manneronly if it is performed in conformity withinstitutional patterns, because only bymeans of an institutional system canindividuals be organized and taught to co-operate in the performance of this long-range function, and the function beintegrated with other social functions.The reproductive or familial institutionsconstitute the social machinery in terms

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of which the creation of new members issupposed to take place. The birth of children in ways that do not fit into thismachinery must necessarily receive thedisapproval of society, else the institu-tional system itself, which depends uponfavorable attitudes in individuals, wouldnot be approved or sustained.

Kings l ey Dav i s , I l l eg i t imacy and the Soc ia lStructure , 45 Am. J. Soc. 215, 219 (1939). Davisand many others defended the unequal legaltreatment of nonmarital children as a necessarymeans to promote what they considered best forsociety and for children.

Although some states , around the middle of thetwentieth century, enacted additional reforms toreduce the number and impact of legal disabilitieson nonmar i t a l ch i ld ren (by, fo r example ,pe rmi t t i ng them to inhe r i t f rom bo th the i rmothers and fathers), many laws that deniedbenefits to children born outside of marriage were

still on the books by the 1960s. See generallyHar ry D . Krause , Equa l P ro tec t ion fo r t heIllegitimate , 65 Mich. L. Rev. 477 (1967). In 1967,this Court agreed to hear a challenge to one of those laws: Louisiana’s refusal to allow nonmari-tal children to sue in tort for the wrongful deathsof their mothers, a right the State provided to mari-tal children. Levy v. Louisiana , 391 U.S. 68 (1968).

In its brief to this Court in Levy , the Stateclaimed it was appropriate to impose unequalburdens on nonmarital children to achieve itsunderstanding of what constituted family optimal-ity: “superior rights of legitimate offspring areinducements or incentives to parties to contract

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marriage, which is preferred by Louisiana as thesetting for producing offspring.” Brief of AttorneyGeneral, State of Louisiana, Levy v. Louisiana at4–5, 391 U.S. 68 (1968).

Th i s Cour t i n Levy re j ec t ed the S ta t e ’sreasoning, concluding that treating nonmaritalch i ldren d i fferent ly was a form of invid iousdiscriminat ion. Levy , 391 U.S. at 71–72. TheCourt pointed out that those children, when theybecame adults, had the same legal obligations aseveryone else, and yet the State denied themr igh t s and bene f i t s en joyed by the i r f e l l owc i t i zens . Such d i f f e ren t i a l t r ea tmen t wasp roh ib i t ed by the cons t i t u t iona l manda terequiring equal protection for all. Id .

Three years after Levy , the constitutionality of another Louisiana statute, one that precludednonmarital children from inheriting from theirfathers if “legitimate” children also claimed aninher i tance , reached th is Cour t in Labine v.Vincent , 401 U.S. 532 (1971). Louisiana once again

argued the differential treatment of nonmaritalchildren was necessary to promote marriage andthe nuclear family. Brief of Attorney General forthe State of Louisiana at 3, Labine v. Vincent , 401U.S . 532 (1971) ( c l a iming l aws tha t “ f avorlegitimate children over illegitimate children . . .strengthen the idea of a family unit to discouragethe p romiscuous bea r ing o f ch i ld ren ou t o f wedlock. Whether this is good or bad it seems is asociological question and not a legal one.”). Lawsthat denied benefits to nonmarital children, theState explained, “are based on the propositionthat the family is a critical unit of society.” Id . at

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4. The government added such statutes “encour-age marriage and family ties.” Id.

The year after Labine , this Court in Weber v. Aetna Casualty & Surety Company addressed theconstitutionality of a statute that denied workers’compensation benefits to the nonmarital childrenof employees. Weber v. Aetna Casualty & SuretyCo. , 406 U.S. 164 (1972). In Weber , this Court heldthat whatever interests the government mighthave in promoting marriage and discouraging thebirth of nonmarital children, those interests werenot advanced by denying workers’ compensationbenefits to those children. The Court found itirrational to believe people would “shun illicitrelations” because their children might somedaybe denied access to particular benefits. Id . at 173.

After Weber , governments ceased defending thedifferential t reatment of nonmari tal chi ldrenbased on the asserted need to encourage pro-creation within marital families and to discourageother family forms. Instead, government defen-

dants focused on narrower justifications for thedifferential treatment, including the adminis-t ra t ive d i ff icu l t ies of es tab l i sh ing pa tern i tyoutside of marriage and the need to discouragespurious claims for government benefits. See, e.g.,Lalli v. Lalli , 439 U.S. 259, 268 (1978) (notingthat the State has a considerable interest arisingfrom the “peculiar problems of proof” in paternalinheritance cases involving nonmarital children);J imenez v. Weinberger , 417 U.S. 628, 633–34(1974) (rejecting government defense that denyingbene f i t s t o nonmar i t a l ch i ld ren o f d i sab ledparents born after the onset of disability was

justified to prevent spurious claims). Government

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defendants had to narrow their justifications forthe differential treatment of nonmarital childrenbecause this Court grew increasingly skeptical of efforts to deny benefits to people because of thecircumstances of their birth. See, e.g. , Clark v.Jeter , 486 U.S. 456 (1988); New Jersey WelfareRights Org. v. Cahill , 411 U.S. 619 (1973); Gomezv. Perez , 409 U.S. 535 (1973).

IV. OPPONENTS OF MARRIAGES BY SAME-SEX COUPLES CONTINUE TO MAKE

PSEUDOSCIENTIFIC AND PSEUDO-EMPIRICAL CLAIMS ABOUT SOCIAL

AND CH IL D WE LF AR E

Although efforts to justify exclusionary maritalpolicies with pseudoscientific claims have longbeen discredited, such efforts are not a thing of the past. Several opponents of marriage equalityin the case below adopted precisely this approach.The Catholic Conference of Ohio, for instance,sugges ted tha t “a la rge and growing body of research” shows how children need both a maleand a f ema le pa ren t . Br i e f fo r t he Ca tho l i cConference of Ohio as Amici Curiae Supporting

Appellants at 9, DeBoer v. Snyder , 772 F.3d 388(6th Cir. 2014) (No. 14-3464). In support of thisclaim, the marriage equality opponents quoted a1996 study that did not study families headed bysame-sex coup le s ( id . ; Dav id Popenoe , Li feWithout Father: Compelling New Evidence ThatFatherhood & Marriage Are Indispensable For TheGood Of Children & Society 146 (1996)); a 2002study whose authors deny that conclusions onmarriage equality can be drawn from its findings(id. ; Kristin Anderson Moore et al., Child Trends,Marriage From a Child’s Perspective: How Does

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Family Structure Affect Children and What CanWe Do Abou t I t ? 1–2 (2002) , ava i l ab l e a thttp://www.childtrends.org/files/MarriageRB602.pdf); and a 2012 article by a political philosopherconcerned with marriage equality in the context of “John Rawls’s political liberalism and its ideal of public reason” ( id. ; Matthew B. O’Brien, WhyLiberal Neutrality Prohibits Same-Sex Marriage:Rawls, Political Liberalism, and the Family , 2012Brit. J. Am. Leg. Stud. 411)). Marriage equalityopponents presented these as exemplars of the“ large and growing body of research” on thesubject, id. , when in fact the research shows theprecise opposite of their conclusions. See generallyCarlos A. Ball, Same-Sex Marriage and Children:

A Tale of History, Social Science, and Law (2014).

The Michigan Catholic Conference also invokedscience to justify banning marital unions by same-sex couples. But i ts brief ci ted the same 2002study on which its Ohio counterparts relied, againcontrary to its authors’ insistence that the study

tells us nothing about outcomes for children of same-sex couples. Brief for Michigan CatholicConfe rence a s Amic i Cur i ae Suppor t ing

Appellants at 15, DeBoer v. Snyder , 772 F.3d 388(6th Cir. 2014) (No. 14-1341). The brief furthercited a century-old pamphlet titled Marriage and

Divorce . Id. This text—whose primary aim is towarn against the evils of divorce, even in cases of adu l t e ry—desc r ibes how a “ch i ld needs thefather ’s masculine influence, and the mother ’sfeminine influence, always together, the two

streams uniting to pour their fructifying influencethrough the child’s life into the life of humanity.”Id . Bu t t he quo ted au tho r ( an e th i c i s t andreligious leader) cites no sources, leaving this

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“fructifying influence” no better grounded than a j udge ’s “da i ly observa t ions” o f the supposeddeficiencies of interracial children.

Marriage equality opponents repeat historical,pseudoscientific assumptions of social welfare andfami ly op t ima l i ty t o j u s t i fy an exc lus iona rymarital policy. Such opponents denigrate relianceon the “shifting sands of social science” where itsuits them, but invite this Court to uncriticallyaccept “scientific” postulates analogous to thosediscredited in modern legal contexts such as thoseinvolving marriage bans across racial lines, lawsprohibiting individuals with disabilities frommarrying, and the imposition of legal burdens onnonmarital children. Brief for Public Advocate of t he Un i t ed S ta t e s e t a l . a s A mic i Cur i aeSupporting Appellants at 5, DeBoer v. Snyder , 772F.3d 388 (6th Cir. 2014) (No. 14-1341). This Courtshould reject them here as well.

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CONCLUSION

In the cases of both race-based marital restric-tions and the differential treatment of nonmaritalchildren, this Court eventually rejected efforts todefend discriminatory marriage laws and policiesbased on the supposed pursuit of social welfareand family optimality. Those efforts frequentlywere grounded in purported “scientific” facts relat-ing to the well-being of society and children. Butthis Court ultimately saw them for what they were:

constitutionally impermissible ways of privilegingthe rights and interests of some over those of others.

Al though cl as s-based mari ta l ex clus ions havebeen relatively rare in American history, theyusual ly have shared one charac ter i s t ic : Pro-ponents of those laws have attempted to justifythem by making pseudoscientific claims about howbest to maximize social welfare and child well-being. The courts, and the broader society, eventu-ally came to understand that such efforts wereconstitutionally impermissible, morally unaccept-able, and empirically indefensible.

The same likely will be true when the judgmentof history regards the pseudoempirical claimsmade by those who today defend the categoricalexclusion of same-sex couples from the institutionof marriage based on the alleged need to protectsociety and children from harm. The troublingways class-based marital policies and restrictionswere defended in the past should make this Court

highly skeptical of the effort to deny same-sexcouples the opportunity to marry, purportedly topromote the well-being of society and children.

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The lesson of the history explored in this brief isthat the empirical-sounding, pseudoscient if icassertions of jurists and counsel in defendingmarital bans in one era often are revealed asinvidious and indefensible discrimination overtime. The decisions below should be reversed.

Respectfully submitted,

P AUL J. H ALLCounsel of Record

J EFF D E G ROOTG EORGE G IGOUNAS

J ESSE MEDLONGDLA P IPER LLP (US)555 Mission Street, Suite 2400San Francisco, CA 94105-2933(415) 836-2500

[email protected]

Attorneys for Amici Curiae

March 6, 2015

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Documents

Carlos A. Ball, et al., Amicus Brief